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UNIVERSITY  OF  CALIFORNIA   SAN  DIEGO 


3  1822  02751  8570 


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Famous  Trials. 


THE    TICHBORNE    CLAIMANT. 

TROPPMANN. 

PRINCE    PIERRE    BONAPARTE. 

MRS.    WHARTON. 

THE   METEOR.  — MRS.    FAIR. 


BY 

JOHN  T.ImORSE,  Jb. 


BOSTON: 
LITTLE,   BROWN,   AND    COMPANY. 

1874. 


Entered  according  to  Act  of  Congress,  in  the  year  1874,  by 

LITTLE,    BROWN,    AND    COMPANY, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


cajihridge: 
press  of  john  wilson  and  son. 


PKEFACE. 


Late  in  the  summer  of  1873,  in  a  moment  of 
weakness,  I  made  a  reckless  promise  to  the  editors 
of  the  "  American  Law  Review  "  to  furnish  them 
with  an  article  on  "  the  Tichborne  Case."  When 
I  came  to  undertake  the  task  I  at  first  stood  aghast 
at  the  labor  which  it  promised  to  entail ;  it  seemed 
the  work  of  weeks  merely  to  read  the  materials  in 
the  columns  of  the  London  daily  papers.  It  soon 
became  apparent  that  the  only  way  to  write  the 
article  was  to  compile  a  much  longer  account  than 
the  editors  of  the  Review  could  use  and  then  to 
compress  and  curtail  that  narrative  within  the 
necessary  limits.  The  strange  fascination  of  this 
greatest  and  most  remarkable  of  all  trials,  ancient 
or  modern,  took  such  powerful  possession  of  me 
as  I  proceeded  with  my  reading  and  the  sketch  as 
written  in  its  first  and  fuller  form  seemed  so  much 
more  adequately  to  convey  the  interest  of  the  case 
than  could  any  brief  article,  that  I  finally  resolved 
to  publish  the  result  of  my  labors  in  its  original 
shape. 


IV  PREFACE. 

The  manner  in  which  I  have  been  obliged  to 
write  the  account  has  inevitably  produced  numer- 
ous blemishes  in  it,  from  an  artistic  point  of  view. 
The  significance  of  many  matters  was  only  devel- 
oped by  degrees  in  the  progress  of  the  trial ;  but 
the  rearrangement  and  amending  of  the  perspective 
which  each  mail  from  Europe,  bringing  new  papers 
and  fresh  material,  continually  rendered  deskable, 
could  be  done  very  imperfectly  or  sometimes  not 
at  all,  by  reason  of  the  fact  that  the  earlier  sheets 
were  already  in  the  hands  of  the  printer.  Of  the 
defects  in  the  construction  of  the  account,  due  to 
this  cause,  I  am  painfully  aware.  Especially  will 
they  be  apparent  to  any  lawyer  who  may  be  at  the 
pains  to  peruse  the  volume.  I  must  trust  to  the 
singular  attraction  of  the  wonderful  cause  itself 
to  render  my  pages  agreeable  in  spite  of  their 
faults.  For  myself,  I  must  say  that  the  most 
exciting  novel  I  have  ever  read  has  failed  to  hold 
my  attention  with  so  close  a  grasp  as  has  been 
exerted  by  the  records  of  this  prosecution.  If  my 
narrative  gives  a  clear  and  intelligible  sketch  of 
the  proceedings  I  hope  it  may  derive  such  an 
interest  from  them  as  will  serve  in  part  to  hide,  or 
at  least  to  obtain  an  excuse  for,  its  faults  of  execu- 
tion. 

The  accompanying  articles  have  been  from  time 


PREFACE.  V 

to  time  contributed  to  the  "  American  Law  Re- 
view." The  trials  of  Troppmann,  Prince  Bona- 
parte, Mrs.  Wharton,  and  Mrs.  Fair  were,  at  the 
times  of  their  occurrence,  sufficiently  notorious 
throughout  the  United  States  to  justify  the  expee- 
tation  that  even  now,  though  two  or  three  years 
have  elapsed  since  they  took  place,  some  persons 
may  find  pleasure  in  reading  them. 

The  "Meteor"  case  involved  questions  of  such 
importance  that,  though  less  popular  in  its  char- 
acter, it  has  been  thought  worth  preserving. 


JOHN  T.  MORSE,  Jk. 


16  Pemberton  Square,  Boston, 
March  14,  1874. 


conte:n^ts. 


FAQS 

Preface iii 

TiCHBORXE 5 

Opening  for  the  Crown 9 

Testimony  for  the  Crown 47 

Opening  for  the  Defence 80 

Testimony  for  the  Defence 94 

Closing  for  the  Defence 123 

The  Chief  Justice's  Charge 174 

The  Verdict 232 

Tkoppmaxx  and  Bonaparte 235 

I.  Troppmann 235 

II.  Bonaparte 256 

Mrs.  AVharton 274 

The  Meteor 310 

Mrs.  Laura  D.  Fair 835 


TICHEOENE. 


On  Wednesday,  April  16,  1873,  in  accordance 
"with  an  ancient,  honorable,  and  truly  British  cus- 
tom, the  Lord  Chancellor  "  entertained  the  judges, 
sergeants,  and  Queen's  counsel  at  breakfast,  at  his 
private  residence  in  Portland  Place."  This  hos- 
pitable and  pleasing  ceremonial  having  been  duly 
performed,  his  Lordship  and  guests  proceeded  to 
Westminster  Hall,  and  passed  in  procession  to  their 
respective  courts.  A  large  crowd,  which  had 
gathered  for  the  purpose,  witnessed  this  august 
spectacle.  Perhaps  the  popular  interest  was  ren- 
dered greater  than  usual  by  reason  of  the  fact  that 
the  case  of  the  Tichborne  claimant  was  to  be  called 
for  trial  a  week  later  in  the  Court  of  Queen's  Bench. 
No  sooner  had  the  judges  taken  their  seats,  and 
opened  in  due  course  the  Easter  term,  than  a  sort 
of  warning  gun  was  fired  by  Dr.  Kenealy,  Queen's 
Counsel,  chief  advocate  for  the  defendant.  He 
applied,  on  behalf  of  his  client,  for  a  rule  against 
Mr.  George  Routledge,  of  the  well-known  pubUshing 
firm  of  Routledge  &  Sons,  to  answer  for  an  alleged 
contempt,  in  publishing  a  book  the  year  before, 
entitled  "  The  Tichborne  Romance,"  in  which,  as 


6  TICHBOENE. 

the  doctor  said,  the  claimant  had  been  called  an 
impostor  and  a  liar,  and  had  been  otherwise  held 
up  to  contempt.  After  much  argument  the  judges 
somewhat  reluctantly  granted  the  rule,  refusing, 
however,  a  request  to  make  it  returnable  before 
the  trial.  The  Chief  Justice  read  the  counsel  a 
severe  lecture  on  the  impropriety  of  opening  such 
a  discussion  on  the  eve  of  these  criminal  proceed- 
ings^ the  purpose  too  evidently  being  to  arouse 
sympathy  for  his  client,  and  to  enable  him  thus 
indirectly,  if  the  expression  may  be  allowed,  to 
draw  the  first  blood.  But  as  the  great  cause  ad- 
vanced and  feeling  upon  both  sides  waxed  daily 
warmer  and  warmer,  these  processes  for  contempt 
were  very  near  being  themselves  brought  into  con- 
tempt, so  very  often  were  they  requested  and  so 
often  also  granted.  Newspaper  editors  especially 
were  summoned  from  all  parts  of  the  kingdom  to 
receive  severe  admonitions,  to  pay  fines,  to  make 
public  apologies.  They  had  a  good  many  comrades 
in  misfortune,  however ;  and  before  the  end  of  the 
matter  Mr.  Whalley,  a  member  of  Parliament,  and 
friend  and  supj)orter  of  the  claimant,  actually 
found  himself  fast  within  the  walls  of  a  gaol,  in 
default  of  payment  of  a  fine  imposed  for  contempt. 
As  for  the  rebuke  administered  by  the  Chief  Justice 
to  Dr.  Kenealy,  such  entertainment  soon  became 
a  part  of  the  regular  order  of  each  day's  proceed- 
ings. 

The  trial  began  on  Wednesday,  April  23,  1873, 
upwards  of  a  year  having  elapsed  since,  on  March  6, 
1872,  the  defendant  had  been  committed  to  New- 


TICHBORNE.  7 

gate,  by  the  Lord  Chief  Justice  of  the  Common 
Pleas,  on  charges  of  forgery  and  perjury.     This 
was  a  trial  "  at  bar,"  in  the  Queen's  Bench,  an 
occurrence  so  rare,  that  it  was  called  to  mind  that 
the  latest  instance  of  it  had  occurred  forty  years 
back,  in  the  case  of  the  Mayor  of  Bristol.     It  is  by 
no  means  every  defendant,  even  though  accused  of 
weighty  crimeSL,  who  obtains   such  a  distinction. 
The  purpose  sought  to  be  secured  by  the  arrange- 
ment was,  the  empanelling  a  special  jury,  which 
could  not  have  been  had  in  the  Central  Criminal 
Court,  where   the   defendant  had  been   indicted. 
Neither  could  it  have   been  had  in  the  Queen's 
Bench,  under  the  count  for  forgery,  because  that 
was  a  felony.     Whence  it  happened  that  Dr.  Ken- 
ealy,  who  dreaded  a  special  jury  and  much  preferred 
to  take  liis  chance  with  tAvelve  ordinary  men,  re- 
quested the  Court  to  order  a  trial  for  the  greater 
crime  first.     But  the  Court  refused,  saying  that 
the  prosecution  was   entitled  to  select  the  count 
upon  which  it  would  proceed.     At  the  trial  of  the 
civil  cause,  Tichborne  in  ejectment  v.  Lushington, 
Chief  Justice  Bovill  had  made  some  remarks  on 
the  aristocratic  character  of  the  jury,  and  indeed 
no  less  than  three  members  of  Parliament  were 
originally  drawn  upon  it.     This  special  jury  was 
summoned  by  an  officer  of  the  Court,  called  the 
Master,  instead  of  bj"-  the  sheriff,  and  was  "  mixed  " 
of  "  tradesmen  "  and  "  gentlemen." 

It  is  pleasant  to  deal  with  all  these  fine  old- 
school  distinctions.  The  flavor  of  a  rich  medisevalism 
thus  far  in  our  account  has  been  very  strong,  and 


8  TICHBORNE. 

"we  hope  has  not  escaped  the  gratified  senses  of  our 
readers.  This  picturesquely  mottled  array  of  jurors 
numbered  at  first  forty-eight ;  each  side  then  struck 
off  twelve.  We  can  imagine  Dr.  Kenealy  making 
a  deadly  onslaught  upon  a  dozen  irreproachable 
"  gentlemen,"  and  Mr.  Hawkins,  Q.  C,  on  behalf 
of  the  prosecution,  eliminating  as  many  low-bred 
*'  tradesmen."  The  remaining  twenty-four  were 
unchallengeable,  and  they  were  called  in  turn  until, 
from  such  of  them  as  had  no  sufficient  excuse  for 
non-service,  the  panel  was  filled. 

The  indictment  ran  against  "  Thomas  Castro, 
otherwise  Arthur  Orton,  otherwise  called  Sir  Roger 
Charles  Tichborne."  Mr.  Hawldns  and  four  other 
barristers  appeared  for  the  prosecution,  in  the  stead 
of  the  Attorney-General ;  the  Chancery  Solicitor 
for  the  Treasury  sat  with  them.  Dr.  Kenealy  and 
Mr.  McMahon  appeared  for  the  defendant.  The 
claimant  himself  entered  the  court-room,  accompa- 
nied—  countenanced  would  be  an  improper  phrase 
—  by  Mr.  Guildford  Onslow,  a  member  of  Parlia- 
ment. It  was  then  suggested  that  one  or  two  jurors 
were  subject  to  proper  exceptions.  One  of  them 
was  said  by  Dr.  Kenealy  to  have  had  some  trouble 
with  the  trustees  of  the  Defence  Fund.  He  ac- 
knowledged that  he  had  passed  round  contribution 
boxes  for  the  Fund  ;  and  for  this  reason  he  was  then 
allowed  to  retire  :  a  permission  of  which  he  availed 
himself  with  undisguised  pleasure.  Mr.  Hawkins 
seized  the  occasion  for  the  happy  remark  that  now, 
at  any  rate,  this  juror  was  in  the  wrong  box ;  and 
his  audience  were  obliging  enough  to  laugh  at  the 


-i^iSi^P 


TICHBOENE.  9 

pun.  A  like  gentle  and  refreshing  rain  of  wit  con- 
tinued to  fall  at  frequent  intervals  throughout  the 
proceedings,  only  occasionally  appearing  to  turn  into 
biting  hail  when  it  came  from  the  redoubtable  lips 
of  the  Chief  Justice.  In  this  country,  at  least  in  the 
higher  tribunals,  a  staid  and  dignified  decorum  is 
practised,  which  usually  precludes  attempts  to  en- 
liven the  court-room  by  any  displays  of  indifferent 
humor  in  such  a  forced  and  illegitimate  manner. 
But  throughout  this  trial,  no  person  —  whether  upon 
the  bench,  among  the  learned  counsel,  on  the  panel 
of  the  jury,  or  in  the  witness-box  —  seems  ever 
to  have  £in  idea  occur  to  him  of  a  real  or  supposed 
droll  character,  without  at  once  giving  vent  to  it, 
and  generally,  it  must  be  added,  finding  his  little 
comicalit}',  however  humble,  to  be  very  well  re- 
ceived. To  an  American  lawyer  this  is  quite  a 
striking  and  novel  feature  in  the  conduct  of  the 
cause. 

Mr.  Hawkins  opened  for  the  Crown.  Of  a  speech 
which  occupied  six  full  days  in  the  delivery,  it  can 
be  possible  here  to  give  only  the  briefest  sketch  or 
"  argument."  The  defendant  was  charged  with 
having  committed  perjury  at  the  trial  of  the  civil 
cause,  in  which  he  had  appeared  as  plaintiff,  in 
three  main  particulars :  First,  he  had  sworn  that 
he  was  Roger  Charles  Tichborne,  heir  to  the  Tich- 
borne  estates,  whereas  in  fact  he  was  not  this 
person  ;  second,  he  had  sworn  that  he  was  not 
Arthur  Orton,  whereas  in  fact  he  was  Arthur 
Orton ;  third,  he  had  sworn  that  he  had  seduced 


10  TTCHBORNE. 

Roger's  cousin,  Kate  Doughty,  now  Lady  Radcliffe, 
in  making  which  statement  under  oath,  he  had  sworn 
to  a  most  foul  and  abominable  falsehood.  Of  course, 
in  supporting  these  assertions,  he  had  uttered  a 
multiplicity  of  subordinate  perjuries.  The  Crown 
now  would  seek  to  prove  perjury  in  each  one  of  these 
three  matters,  and  thereby  would  introduce  new 
elements  of  interest  into  the  case ;  for  Avhereas  in 
the  previous  suit  in  ejectment  the  defence  had  only 
sought  to  prove  that  this  claimant  was  not  the 
person  he  represented  himself,  and  had  confined 
itself  to  suggesting,  collaterally  as  it  were,  that  he 
was  Orton,  it  was  now  to  be  positively  proved  that 
he  was  Orton. 

Mr.  Hawkins  first  presented  a  sketch  of  the  life 
of  Roger  Charles  Tichborne,  to  the  point  at  which 
all  record  of  that  life  ceased,  or  was  supposed  to 
have  ceased  until  the  claims  of  this  defendant  to 
be  that  person  were  preferred.  The  family  was  of 
the  Catholic  faith.  Sir  James  Tichborne  had 
married  a  French  lady  of  the  noble  family  of 
Bourbon-Conti,  whence  it  came  to  pass  that  they 
lived  much  in  Paris  ;  Sir  James,  indeed,  appears 
to  have  been  one  of  those  British  exotics  who  can 
flourish  and  live  happily  only  in  the  air  of  Conti- 
nental Europe.  Their  son  Roger  was  born  in  the 
French  capital,  January  5,  1829,  and  thereafter 
continued  to  live  there,  becoming  familiar  with 
the  streets  of  that  metropolis,  having  a  series  of 
French  tutors,  learning  French  as  his  mother-tongue 
and  the  language  of  his  daily  life,  hearing  no  Eng- 


HENRY  HAWKINS,  Esq.,  Q.C. 
(Leading  Counsel  for  the  Crow-n.) 


'W 


TICHBORNE.  11 

lish  from  his  mother,  and  almost  none  from  his 
father,  taught  to  confess,  and  admitted  to  the 
bosom  of  the  Holy  Church.  Later  he  was  sent  to 
the  Catholic  seminary  at  Stonyhurst.  Here  his 
French  was  so  far  from  being  forgotten  that  it 
continued  to  be  the  language  which  he  always 
spoke  from  preference.  His  morals  were  repre- 
sented by  the  counsel  as  being  most  diligently  cared 
for  upon  this  establishment.  Indeed  the  pupils  of 
Stonyhurst  were  said  to  have  been  walled  around 
and  guarded  against  any  knowledge  of  vice  or 
impurity  with  such  sedulous  and  minute  attention, 
that  the  entrance  of  wicked  thoughts  into  their 
minds  seemed  to  be  little  short  of  an  actual  impos- 
sibility. This  garden  of  astonishing  juvenile  virtue 
and  moral  loveliness  was  the  only  school  to  which 
Roger  ever  went,  save  a  short  attendance,  of  only 
fourteen  days,  at  the  seminary  of  M.  Dupanloup, 
near  Paris.  Such  education  as  he  ever  had  —  and 
scandalously  little  it  would  have  been  accounted 
for  the  son  of  any  person  above  the  degree  of  a 
pauper  —  was  finished  when  he  left  here.  Soon 
afterward  he  entered  the  army,  as  a  cornet  in  the 
Sixth  Carabineers. 

One  of  the  earliest  exploits  of  his  budding  man- 
hood was  to  fall  in  love  with  his  cousin,  Miss  Kate 
Doughty ;  and  this  unfortunate  passion  it  was  that 
proved  to  be  the  first  step  in  the  chain  of  events 
.which  has  just  culminated  in  the  verdict  of  the 
jury  in  this  cause.  For,  though  the  young  lady 
returned  her  youthful  lover's  affection,  the  parents 
were  of  a  different  mind.     In  despair  at  the  inter- 


12  TICHBORNE. 

position  of  this  obstacle,  which  was,  or  at  least 
which  seemed  to  be  insurmountable,  Roger  resolved 
to  seek  consolation  or  forgetfulness  in  foreign  parts. 
He  does  not  appear  to  have  been  a  particularly 
estimable  young  man.  Mr.  Hawkins  had  his  own 
reasons  for  seeking  to  represent  hira  as  a  pure- 
minded  gentleman.  But  one,  if  not  the  chief, 
objection  to  him  in  his  love  affair  was,  undeniably, 
his  very  strong  propensity  for  drink.  He  was  not 
particularly-  intelligent,  nor  did  his  general  cultiva- 
tion do  much  to  supply  his  native  deficiencies  or 
to  enable  him  to  do  credit  to  his  rank  and  social 
position.  Accordingly,  when  he  made  his  proposi- 
tion to  absent  himself  for  a  long  period,  he  is 
not  shown  to  have  encountered  any  very  grave 
opposition  from  a  family  and  friends  who  doubtless 
felt  that  they  could  endure  his  absence  with  forti- 
tude, if  not  with  pleasure. 

In  February,  1853,  he  went  over  to  Paris,  to  bid 
his  mother  farewell,  and  at  this  parting  interview 
he  gave  her  a  lock  of  his  hair.  After  her  death, 
this  memento  was  deposited  in  the  Court  of  Chan- 
cery. What  a  strange  collection  of  articles,  so 
many  souvenirs  of  tender  but  defunct  affections, 
becoming  in  the  lapse  of  a  few  years  incomprehen- 
sible to  all  living  men,  yet  still  carefully  treasured, 
do  those  dusty  old  Chancery  crypts  contain ;  re? 
ceptacles  only  less  multifarious  than  the  renoAvncd 
recesses  of  the  moon !  So  the  ambrosial  curl  of  the 
scapegrace  Tichborne  heir  was  mustily  filed  away 
and  formally  docketed  in  Chancery  when  his  mother 
died,  and  no  surviving  mortal  cared  to  keep  it  longer 


TICHBORNE.  13 

as  matter  of  sentiment,  and  it  was  valuable  only  for 
use  in  these  causes.  On  the  fourth  of  March,  the 
wanderer  sailed  from  Havre  for  Valparaiso,  whither 
he  came  in  safety.  For  some  time  he  remained  in 
South  America,  writing  to  the  family  at  home  with 
much  frequency  and  regularity  kind  and  affection- 
ate letters,  though  apparently  he  was  not  troubled 
with  home-sickness,  for  he  ever  expressed  himself 
much  pleased  with  his  roving  life.  He  sent  home 
portraits  of  himself,  —  in  which,  however,  he  hardly 
thought  they  would  recognize  him,  because  he  had 
become  so  "  like  a  red-skin  Indian."  These  por- 
traits Mr.  Hawkins  promised  should  be  produced 
to  the  jury.  But  the  defendant  denied  having  ever 
sent  any  thing  of  the  sort.  Further,  as  indicative 
of  the  pleasing  humor  of  the  youth,  the  real  Roger, 
it  may  be  mentioned  that  he  sent  to  his  friend 
Gosford  (of  whom  more  hereafter)  a  little  skeleton 
in  a  bottle.  This  also  the  defendant  ignored, 
and  it  certainly  was  not  a  natural  occurrence  to 
imagine. 

In  April,  1854,  Roger  sailed  in  the  "  Bella,"  from 
Rio  Janeiro,  for  New  York.  He  was  put  on  board 
by  a  gentleman  who  would  be  called  as  a  witness 
by  the  government.  A  letter  written  by  him,  just 
before  his  embarkation,  shows  his  intention  at  this 
time  to  have  been  to  prolong  his  stay  from  home 
for  two  or  three  years  longer.  And  here,  said  Mr. 
Hawkins,  ends  the  true  and  veritable  history  of 
Roger  Charles  Tichborne.  Some  four  or  five  days 
after  the  "  Bella "  had  sailed,  her  long-boat  was 
picked  up  at  sea ;  but  she  never  was  heard  of  again. 


14  TICHBORNE. 

No  person  who  sailed  on  board  of  her  ever  was 
heard  of  again.  The  underwriters  paid  the  insur- 
ance on  the  ship  and  cargo.  The  will  of  Roger 
Charles  Tichborne  was  proved,  and  the  executors 
acted.  "  One  poor,  crazy,  misguided  soul  alone 
refused  to  believe  that  her  first-born  son  was  dead." 
But  nothing  was  heard  from  him  who  had  pre- 
viously been  so  regular  a  correspondent,  who  had 
a  handsome  allowance  awaiting  him  in  the  hands 
of  his  bankers,  and  who  had  never  before  mani- 
fested any  indifference  in  respect  of  so  interesting  a 
matter.  Eleven  long  years  rolled  by  in  slow  suc- 
cession, in  silence  and  oblivion,  when  "  suddenly, 
in  Australia,  a  butcher  came  from  the  shambles 
and  announced  himself  as  the  long-lost  heir." 
That  butcher  was  the  defendant  in  this  cause. 
That  butcher  was  Arthur  Orton.  The  life  of  the 
real  Tichborne  had  ended  when  the  "  Bella  "  went 
down  in  April,  1854  ;  and  it  was  now  necessary  to 
present  the  narrative  of  the  life  of  this  Arthur 
Orton,  this  person  still  in  being,  and  now  before 
the  Court  and  jury. 

It  was  a  difficult  task  to  trace  the  wanderings  of 
a  man  of  Orton's  character  and  condition  in  life 
through  so  many  and  such  distant  years  ;  but  the 
counsel  thought  he  had  accomplished  the  feat  with 
tolerable  success. 

Arthur  Orton  was  born  June  1,  1834,  being 
therefore  the  junior  of  Roger  Tichborne  by  about 
six  years.  He  was  the  youngest  son  of  a  respect- 
able shipping  butcher,  who  lived  in  London,  at 
69  High  Street,  Wapping.     He  was  but   poorly 


TICHBORNB.  15 

educated,  learning  to  read  and  write  and  acquiring 
a  smattering  of  arithmetic,  just  enougli  to  aid  his 
father  a  little  in  his  business.  The  boy  was  afflicted 
with  Saint  Vitus's  dance,  and  when  about  fourteen 
years  of  age  he  was  sent  a  sea  voyage  for  the 
good  of  his  health.  This  defendant  had  mentioned 
that  he  had  had  Saint  Vitus's  dance,  which,  though 
true  of  Orton,  was  not  true  of  Roger  Tichborne. 
Orton,  accordingly,  took  passage,  in  1848,  from 
Antwerp,  for  Valparaiso,  arriving  there  in  Novem- 
ber of  that  year.  The  captain  of  the  ship  in  which 
he  sailed  is  dead,  but  his  wife  is  living,  and  will 
appear  as  a  witness  in  the  cause,  to  testify  her 
belief  that  this  defendant  is  Arthur  Orton.  Two 
months  later  he  was  at  Valparaiso  again,  and  this 
time  deserted  his  ship  and  went  inland  to  a  small 
town  called  Melipilla.  There  he  became  acquainted 
with  a  family  of  Castros,  who  treated  him  kindly, 
and  afterward  he  is  found  assuming  the  name  of 
Castro.  He  picked  up  also  a  smattering  of  Spanish, 
showing  that  he  stayed  in  the  place  for  some  little 
time.  The  dates  of  Roger's  letters,  as  Mr.  Hawkins 
contended,  showed  that  he  could  not  have  been  to 
Melipilla  at  all ;  certainly  not  long  enough  to  pick 
up  the  least  knowledge  of  Spanish.  Indeed,  Tich- 
borne was  far  from  quick  at  learning.  In  February, 
1851,  the  defendant  again  sailed  for  home,  under 
the  name  of  Joseph  Orton,  but  bearing  the  seaman's 
number  of  Arthur  Orton.  He  arrived  in  safety, 
made  his  way  forthwith  to  69  High  Street,  and 
in  the  circle  of  his  old  acquaintance  was  dubbed 
"  fatty,"    or    sometimes    "  buUocky,"    Orton,   on 


16  TICHBORNE. 

account  of  his  great  increase  in  size.  He  weighed 
thirteen  stone  and  was  but  eighteen  years  old. 
At  this  time  his  heart  was  somewhat  touched  by 
the  charms  of  a  damsel  of  Wapping,  named  Mary 
Anne  Loder;  with  her  he  "kept  company."  But 
erelong  he  became  restless,  slipped  the  chains  of 
affection,  deserted  the  fair  Mary  Anne,  and  in 
December,  1852,  cDibarked  on  board  the  ship 
"  Middleton,"  bound  for  Hobart  Town. 

The  history  of  his  adventures  in  Australia  was 
traced  with  a  degree  of  minuteness  which  seems 
extraordinary,  in  view  of  the  difficulties  which 
must  have  been  encountered  in  the  undertaking. 
On  first  arriving  at  Hobart  Town  he  set  up  in 
trade  as  a  butcher.  While  there,  he  met  a  family 
of  Jurys,  connected  with  him  by  marriage,  and 
at  first  saw  a  good  deal  of  them  ;  but,  having 
borrowed  .£14  of  one  of  them,  he  opportunely  dis- 
appeared, just  before  his  note  of  hand  for  that  sum 
fell  due,  and  did  not  afterward  renew  the  acquaint- 
ance. Mrs.  Jury  would  be  called  to  swear  to  the 
identity  of  the  defendant  with  Arthur  Orton.  He 
was  in  service  at  Gippsland  and  afterward  at 
Wagga-Wagga.  At  the  latter  place  an  old  ac- 
quaintance from  Hobart  Town,  one  Hopwood,  met 
him,  and  hailed  him  as  Orton;  but  he  replied: 
"  I  am  not  Orton  :  I  am  Castro.  Come  and  have 
a  drink."  January  29, 1865,  he  married  a  servant- 
girl,  describing  himself  as  Castro,  born  in  Chili, 
and  thirty  years  old:  just  the  age  of  Orton,  but 
six  years  less  than  the  age  of  Roger.  He  lived 
with  his  wife  at  Wagga-Wagga  for  a  time,  in  a  state 


LADY    TICHBORNE. 


TICHBORNE.  17 

of  extreme  poverty.  He  had  Leen  leading  a  dis- 
reputable life.  According  to  his  own  account  of 
himself,  he  was  at  one  time  a  horse-breaker,  at 
another  time  a  butcher :  he  refused  to  say  whether 
or  not  at  another  time  he  was  engaged  in  certain 
highway  robberies,  in  company  with  his  supposed 
double,  Arthur  Orton  ;  but  he  was  caught,  and 
accused  of  horse-stealing  ;  and  he  acknowledged 
having  been  very  ultimate  with  two  notorious  bush- 
rangers and  highwaymen,  Morgan  and  Tote,  of 
whom  the  former  was  shot  in  1865.  Yet  in  all 
his  adventures  and  intimacies  he  said  that  he  had 
never  mentioned  to  any  person,  not  even  to  his 
wife,  that  he  had  been  wrecked,  and  saved  from 
drowning.  This  secret,  for  what  imaginable  reason 
could  not  be  suggested,  he  kept  locked  in  his  own 
bosom,  jealously  guarded  from  all  the  world,  untd 
later  in  this  year,  1865. 

At  what  time  the  plan  that  "  this  slaughterman  " 
should  set  up  as  Roger  Charles  Tichborne  was  first 
concocted,  says  Mr.  Hawkins,  it  is  impossible  to 
say  precisely.  The  inception  of  such  dark  plots  is 
usually  wrapped  in  some  degree  of  secrecy.  But  the 
way  in  which  it  came  about  was  this  :  the  Dowager 
Lady  Tichborne,  possessed  with  the  idea  that  her  son 
was  still  alive,  though  for  no  good  reason  that  she  or 
any  one  else  could  suggest,  in  the  year  1863  adver- 
tised for  him  in  the  "  Times."  Previously  she  may 
be  supposed  to  have  been  held  in  check  by  her  hus- 
band. Sir  James ;  but  he  died  in  1862,  and  she  was 
left  free  to  follow  her  singular  bent.  About  the 
same  tune  one  Cubitt,  in  Sydney,  Australia,  opened 

2 


18  TICHBORNE. 

a  "  Missing  Friends'  Office. "  He  advertised  it 
freely,  and  Lady  Tichborne  saw  the  advertisement. 
Forthwith  she  wrote  to  him.  Cubitt  at  once  made 
public  the  knowledge  that  an  heir  to  the  Tichborne 
estates  was  wanted.  One  Gibbes,  a  lawyer  in  the 
neighborhood,  was  at  the  time  engaged  in  putting 
Orton,  alias  Castro,  through  insolvency.  One  day 
he  saw  his  client  smoking  a  pipe,  upon  which  he 
observed  the  initials  "  R.  C.  T."  Straightway  the 
shrewd  man  of  the  law  turned  upon  the  smoker, 
told  him  that  his  secret  was  out,  that  he  was  indeed 
the  long-lost  heir,  Roger  Charles  Tichborne,  and 
that  if  he  did  not  disclose  himself,  then  he,  Gibbes, 
would  do  so.  So  Gibbes  wrote  to  Cubitt  announc- 
ing the  discovery,  and  Cubitt  wrote  to  Lady  Tich- 
borne, conveying  the  glad  news  of  the  resurrection ; 
and  the  Dowager,  much  pleased,  hastened  to  reply. 
Several  letters  followed.  In  her  correspondence 
she  artlessl}'-  gave  divers  facts  in  the  life  of  her 
son,  which  she  intended  should  be  used  in  identi- 
fying the  person  claiming  that  honor.  This  infor- 
mation, however,  obviously  came  to  hand  very 
opportunely  for  use  for  a  quite  different  purpose.  It 
gave  valuable  hints,  some  of  which  were  improved, 
and  others,  strangely  enough,  were  lost.  And  now 
the  initials  R.  C.  T.,  seen  nowhere  for  eleven  years, 
reappeared  at  the  foot  of  the  defendant's  letters. 
Strange  to  say,  however,  they  were  invariably  ac- 
companied by  a  peculiar  mark,  •)(• ,  which  had 
always  been  used  by  Arthur  Orton,  after  the 
Spanish  fashion.  Gibbes  suggested  to  the  defend- 
ant that  it  would  be  becoming  in  him  to  write 


TICHBOKNE.  19 

to  his  mother ;  and  defendant,  who  had  been  in 
no  huny  to  do  so,  hut  had  for  a  long  while  been 
willing  to  occupy  the  position  of  third  party  and 
allow  the  correspondence  to  be  conducted  by  others, 
at  last  accepted  this  advice,  and  wrote  an  affec- 
tionate epistle,  whereof  the  grammar  and  the 
spelling  would  have  made  the  hearts  of  most 
mothers  ache  sorely;  but  the  sentiments  were 
noble. 

This  agreeable  communication  was  as  follows :  — 

"Wagga  Wagga,  Jan.  17  66. 

My  Dear  Mother  :  —  The  delaye  which  as  taken  place 
Since  my  last  letter,  dated  22d  April  54  Makes  it  very 
difficult  to  commence  this  Letter.  [The  "delay"  since 
the  "  last  letter,"  of  which  the  date  was  so  accurately  given, 
was  nearly  twelve  years !  The  affectionate  writer's  embar- 
rassment was  certainly  not  unnatural  under  the  circum- 
stances.] I  deeply  regret  the  trouble  and  Anxiety  I  must 
have  cause  you  by  not  writing  before.  But  they  are  known 
to  my  Attorney  and  the  more  private  details  I  will  keep 
for  your  own  Ear.  Of  one  thing  rest  Assured,  that  though 
I  have  been  in  a  A  humble  condition  of  life,  I  have  never 
let  any  Act  disgrace  you  or  my  Family.  I  have  been  A 
poor  Man  and  nothing  worse.  Mr.  Gibbes  suggest  to  me 
as  essential  that  I  should  recall  to  your  memory  things 
which  can  only  be  known  to  you  and  me,  to  convince  you 
of  my  Identity.  I  don't  think  it  needful,  My  Dear  Mother, 
although  I  send  them,  Mamely,  the  Brown  Mark  on  my 
side  And  the  Card  Case  at  Brighton.  I  can  assure  you 
My  Dear  Mother,  I  have  kept  your  promice  ever  since. 
In  writing  to  me  please  enclose  your  letter  to  Mr.  Gibbes, 
to  prevent  unnecessary  Enquiry,  as  I  do  not  wish  any  per- 


20  TICHBOKNE. 

son  to  know  me  in  this  Country.  When  I  take  my  proper 
position  and  title,  Having  therefore  made  up  my  mind  to 
return  and  face  the  Sea  once  more,  I  must  request  to  send 
me  the  means  of  doing  so,  and  paying  a  few  outstanding 
debts.  I  would  return  by  the  Overland  Mail.  The  pas- 
sage Money  and  other  expences  would  be  over  Two  Hun- 
dred pound,  for  I  propose  Sailing  from  Victoria,  not  this 
colonly  And  to  sail  from  Melbourne  in  my  own  Name. 
Now  to  enable  me  to  do  this  my  dear  Mother  you  must 
send  me  " [The  rest  of  the  letter  is  missing.*] 

Unfortunately  for  the  sufficiency  of  these  brief 
and  mysterious  suggestions,  there  had  been,  said 
Mr.  Hawkins,  no  brown  mark  on  Roger's  body, 
and  no  card  case  had  ever  occurred  at  Brighton. 
But  worse  than  this  even  were  the  defendant's 
statements,  made  at  this  time  to  sundry  persons 
that  he  was  in  the  array  only  thirteen  days,  and 
was  then  "bought  off;"  that  he  went  to  school 
at  Winchester,  whereas  Roger  went  to  Stonyhurst, 
&c.  But  the  poor  Dowager  was  satisfied,  out  of 
her  inner  consciousness,  so  to  speak;  and,  even 

*  It  may  be  remarked  here  that  the  letters  of  Lady  Tiehborne 
contain  many  proper  names  spelled  with  small  initial  letters ;  on 
the  other  hand,  the  letters  of  the  claimant  show  a  frequent  need- 
less and  improper  use  of  the  capital  initial.  The  former  custom 
might  naturally  follow  a  French  education  :  the  latter  could  never 
be  expected  to  do  so ;  it  is  an  English  habit.  But,  as  will  be  seen 
hereafter,  most  of  the  education  which  Roger  had  —  indeed  all  that 
he  had  when  he  was  forming  his  orthographic  habits  —  was  French. 
His  family  customarily  used  the  French  language.  His  mother's 
errors,  therefore,  would  naturally  have  been  perpetrated  by  the 
eon,  whereas  lie,  in  fact,  fell  into  exactly  the  opposite  kind  of  blun- 
der. I  have  not  seen  in  any  report  of  the  trial  tliat  this  suggestion 
was  made  in  behalf  of  the  prosecution. 


TICHBORNE.  21 

before  she  had  received  the  foregoing  tender  first 
letter  from  her  son,  in  February,  1866,  she  wrote 
to  her  "  Dearest  Son  Roger." 

After  some  delay,  the  defendant,  as  appears 
from  his  letter,  had  prepared  to  return  to  England. 
But,  before  doing  so,  he  deemed  it  proper  to  make 
his  will.  It  was  a  most  unfortunate  piece  of  fore- 
thought. In  that  document  he  disposed  of  prop- 
erty at  Cowes,  Isle  of  Wight,  where  the  Tichbornes 
had  no  property  ;  of  property  at  the  Hermitage  in 
Dorsetshire,  whereas  there  was  no  such  family  seat 
in  that  county  ;  but  there  was  a  farm  called  Her- 
mitage in  Surrey,  which  had  been  acquired  by  the 
family  after  Roger  left ;  of  which,  said  Mr.  Hawkins, 
some  loose  rumor  might  have  reached  the  defend- 
ant's ears,  and  which  he  had  perhaps  confounded 
with  Upton  in  Dorsetshire,  which  also  belonged 
to  the  Tichbornes,  but  which  was  not  referred 
to.  Then  he  mentioned  estates  at  Ryde,  I.  W., 
where  the  Tichbornes  owned  nothing.  He  named 
three  executors  :  J.  Jarvis,  of  Bridport,  a  friend 
of  Arthur  Orton,  but  unknown  to  Roger  Charles 
Tichborne  ;  Sir  J.  Bird,  "  of  Herts,  Baronet,"  who 
was  shown  by  investigation  to  be  a  wholly  ficti- 
tious personage  ;  and  his  mother,  "  Hannah  Fran- 
ces." "  He  did  not  even  know  his  mother's  name  !  " 
said  Mr.  Hawkins.  The  Dowager's  initials,  "  H. 
F.,"  had  been  learned  from  the  correspondence; 
but  her  real  name  was  Henriette  F<^licit^.  The 
name  Henriette  had  indeed  been  signed  to  one 
letter ;  but  this  had  apparently  been  overlooked. 
Invention  was  easier  than  investigation.     This  was 


22  TICHBOENE. 

an  unfortunate  slip  of  memory,  and  altogether  the 
will  had  so  bad  a  look  that  its  absurdity  and  mani- 
fold errors  were  acknowledged  ex  necessitate^  and  it 
was  sought  to  be  explained  away  and  was  averred 
to  be  a  fraud  and  to  have  been  falsified  on  purpose. 
The  purpose  was  to  deceive  and  mislead  a  banker 
at  Melbourne  into  making  advances  to  the  claim- 
ant, as  will  be  set  forth  more  fully  hereafter.  . 

Passages  in  one  of  the  Dowager's  letters  in  May, 
1866,  disclosed  the  fact  that  the  Tichbornes  were 
adherents  of  the  Roman  Catholic  faith.  The  de- 
fendant's marriage  had  previously  been  celebrated 
only  in  a  Wesleyan  Chapel.  But  upon  receipt  of 
this  information  as  to  the  family  creed  he  was  forth- 
with married  again  in  a  Catholic  Chapel,  and  wrote 
forthwith  to  his  "  dearest  mama,"  "  and  may  the 
blessed  Maria  have  mercy  on  your  soul."  "  Roars 
of  laughter  "  followed  this  announcement.  He  was 
first  married  as  Castro ;  but  the  second  nuptials 
were  by  the  name  of  Tichborne,  which,  however, 
he  very  carelessly  spelled  with  an  extra  ^,  thus, 
Titchborne.  He  also  at  one  time  inserted  the 
initial  D  for  Doughty,  into  his  name,  writing  it 
R.  C.  D.  T.,  which  was  erroneous. 

Having  found  his  way  back  to  England  by  the 
route  of  New  York,  this  defendant.  Sir  Roger  Charles 
Tichborne  !  went  whither  ? — not  to  Tichborne  Park, 
not  to  see  any  of  Roger's  relations  or  old  friends  ; 
but  he  repaired  straight  to  No.  69  High  Street, 
Wapping  !  His  father,  George  Orton,  however,  was 
dead  ;  another  family  occupied  the  house.  So  the 
wanderer  turned  aside  to  a  public-house  hard  by, 


TICHBORNE.  "    23 

and  there  made  inquiries  about  the  Ortons.  The 
landlady  answered  him,  and  looking  fixedly  at  him 
exclaimed,  "  Why,  bless  me  !  3^ou  are  rather  like 
an  Orton  yourself !  "  "  Oh,  no  !  "  he  said,  "  I'm 
not  an  Orton :  I'm  only  a  friend  of  the  family." 
Soon  after  he  communicated  with  the  sisters  of 
Arthur  Orton,  using  the  feigned  name  of  Stephens, 
and  openhig  the  correspondence  by  a  sham  letter 
of  introduction.  The  letters  written  to  him  were 
destroyed,  or  not  forthcoming.  But  the  contents 
could  be  inferred  in  part  from  his  replies  ;  in  these 
he  denied  being  Arthur  Orton,  from  which  it  was 
obvious  that  his  correspondents  had  suspected  his 
identity  with  their  long-absent  brother.  They 
wrote,  asking  for  pictures  of  their  brother's  wife 
and  children.  The  defendant  in  return  sent  pict- 
ures of  his  own  wife  and  children.  Sir  Roger 
Charles  Tichborne  was  sending  to  the  sisters  of 
Arthur  Orton  the  likenesses  of  his  own  wife  and 
children  as  being  the  likenesses  of  their  brother's 
wife  and  children !  Singular  circumstance !  yet 
not  more  singular  than  his  feeling  any  interest  in 
the  Ortons  whatsoever.  Beyond  all  this,  however, 
it  was  discovered  that  he  sent  money  to  some  of 
them ;  even  made  a  regular  allowance  of  five 
pounds  per  month  to  one  of  them.  But  later,  in 
view  of  the  gross  imprudence  of  such  conduct,  he 
sent  his  gifts  in  a  feigned  name,  as  coming  from 
one  "  Bland." 

The  next  morning,  after  this  nocturnal  tour  of 
inspection,  he  again  returned  to  inquire  about  the 
sisters    of  Aithur   Orton,   Mrs.    Jurv,   and   Mrs. 


24  TICHBOENE. 

Tredgett.  He  was  directed  to  a  Mrs.  Pardon, 
whom  he  found.  He  sent  in  to  her  the  card  of 
a  Mr.  Stephens,  a  fellow-passenger  of  his  in  the 
ship  from  Melbourne,  whose  card  he  had  secured. 
Mrs.  Pardon  again  charged  him  with  being  an 
Orton,  and  a  second  time  he  denied  the  impeach- 
ment. Such  disagreeable  accusations,  however, 
were  to  be  shunned,  —  he  took  the  warning  ;  and 
this  appears  to  have  been  his  last  open  visit.  He 
left  a  letter,  dated  at  Wagga-Wagga,  June  3, 1866, 
purporting  to  come  from  Orton  to  his  sister,  and  to 
introduce  Stephens.     It  was  signed 

Akthur  Orton 

M 

The  letter  was  evidently  composed  for  the  pur- 
pose of  deception  ;  and  was  not  written  when  and 
where  it  purported  to  be.  For  Stephens  never 
saw  the  defendant  until  he  was  on  shipboard,  cross- 
ing the  ocean  to  England.  So  soon  as  Mrs.  Tred- 
gett opened  the  letter  she  uttered  an  exclamation 
which  Mrs.  Pardon  heard,  but  which  the  rules  of 
law  made  inadmissible  in  evidence. 

Soon  after,  a  letter,  written  by  the  defendant 
"in  a  feigned  hand,"  said  Mr.  Hawkins,  was 
received  by  Mrs.  Pardon,  as  follows :  — 

Dear  Madam,  —  would  you  kindly  inform  the  lady 
for  whom  I  left  a  letter  with  you  that  if  she  will  comicate 
with  me  at  once  she  will  hear  something  to  her  advantage. 
Please  send  what  information  she  can  conserning:   Miss 


TICHBOENE.  25 

Loader  and  her  own  family.     And  what  became  of  her 
brother  Thomas  chilldren. 

I  remain  yours  respecful 

W.  H.  Stephens. 
Address  R.  C.  T.,  Post  Office,  Gravesend. 

The  letter  or  letters  received  by  him  in  reply 
were  not  forthcoming :  he  said,  doubtless  with 
truth,  that  he  had  destroyed  them.  But  their 
contents  may  be  in  part  inferred  from  his  reply. 
He  had  evidently  been  suspected  by  Mrs.  Jury  and 
Mrs.  Tredgett  of  being  their  brother  Arthur.  He 
wrote  this  time  also  "  in  a  feigned  handwriting,"  — 

Ghavesend,  7  Jan.  '67. 
Dear  Madam,  —  I  receved  your  kind  letter  this  morn- 
ing and  very  sorry  to  think  you  should  be  so  much  mis- 
taken as  to  think  i  am  your  brother,  your  brother  is  a  very 
great  friend  of  mine  and  whom  i  regard  as  a  brother.  And 
I  have  likewise  promised  to  send  him  all  the  information 
I  can  about  his  family  I  cannot  call  on  you  at  present  but 
will  do  so  before  long.  I  sent  your  sisters  a  likeness  of 
your  brother  wife  and  child  this  morning  I  should  have 
sent  you  one  but  i  have  only  one  left  which  i  require  for 
Copying.  I  have  likewise  one  of  himself  which  i  intend 
to  get  some  copy  of  I  will  then  send  you  some  of  each 
My  future  address  will  be  R.  C.  T.  Post  Office  liverpool 
Liverpool.  Hoping  to  have  the  pleasure  of  making  the 
acquaintance  of  my  friends  sister  before  long  I  remain 
your  respectfully 

(Signed)     ,  "W.  H.  Stephens. 

When  first  shown  these  letters  at  the  civil  trial, 
the  defendant  denied  having  written  them  and 
said  they  were  forgeries.     But  being  hard  pressed 


26  TICHBOENE. 

by  the  Attorney-General,  in  cross-examipation,  he 
at  last  admitted  their  authenticity  and  deliberately 
acknowledged  his  falsehood.  He  had  been  in- 
duced to  utter  it,  he  said,  because  the  truth 
"  would  injure  him  in  his  case." 

The  matter  of  the  address  at  "  Liverpool,"  too, 
was  significant.  It  was  not  his  real  address  ;  and, 
being  asked  why  he  gave  it,  he  returned  frivolous 
and  evasive  answers,  until  at  last  he  said,  "  I  gave 
that  address,  though  I  was  not  going  to  Liverpool, 
because  I  did  not  want  to  be  bothered  with  them." 
He  was  anxious  to  get  the  coveted  information 
about  his  family,  and  then  to  have  done  with  them. 
Nearer  acquaintance  would  be  awkward.  Already 
they  suspected  him :  they  might  hunt  him  up  at 
Gravesend ;  so  they  were  put  off  the  track  by  the 
sham  direction  of  "  Liverpool." 

These  visits  to  Wapping,  so  grossly  imprudent 
as  they  were,  he  had  instinctively  seen  fit  to  con- 
ceal, even  fi'om  his  own  attorney.  At  the  time 
he  made  them,  indeed,  it  was  not  fully  certain 
that  he  might  not  be  admitted  to  be  the  person 
whom  he  claimed  to  be  ;  and  no  investigation  had 
coupled  him  with  Orton.  It  was  his  own  guilty 
conscience  which  led  him  at  first  to  j^ractise  such 
concealment.  But  afterward  he  felt  obliged 
to  deny  them  with  especial  emphasis,  when 
rumors  began  to  get  about  that  he  was  Arthur 
Orton.  He  then  wrote,  October  20,  1867,  to 
his  firm  friend  Rous  :  — 

"We  find  the  other  side  busy  with  another  pair  of  sis- 
ters for  me  one  of  them  been  to  see  Mr.  Holmes,  they 


TICHBORNE.  27 

had  been  three  days  at  them  and  they  are  quite  sure  of 
success.  Only  there  is  this  difference  which  they  cannot 
make  out.  The  Brother  of  these  young  women  is  very 
dark ;  and  very  much  marked  with  the  smalls  pox  very 
much  about  the  face.  But  they  are  still  very  sure  I  am 
him.  I  wonder  who  I  am  to  be  next.  The  man  they  think 
I  am  is  still  living  at  Wagga  Wagga  under  an  assumed 
name.  They  say  I  was  born  in  Waping  I  am  glad  they 
have  found  a  Respectable  part  of  London  for  me.  I  never 
remember  having  been  there.  But  Mr.  Holmes  tell  me  it  a 
very  respectable  part  of  London. 

(Signed)  11.  C.  D.  Tichborne. 

He  did  not  remember  having  ever  been  there ! 
on  his  cross-examination  he  said :  "  Probably  I 
took  care  not  to  mention  my  visits  there."  The 
double  at  Wagga-Wagga  with  the  "  assumed 
name,"  mentioned  in  this  letter,  was  never  heard 
of  in  any  more  definite  shape  during  the  trial. 
Defendant  said  he  knew  Arthur  Orton,  that  he 
saw  him  in  1866,  indeed,  that  he  brought  over  a 
letter  from  him.  "  But  where  was  Arthur  Orton? 
Was  he  dead?  Then  where  was  the  proof  of  his 
death  ?  Was  he  alive  ?  Then  let  him  be  pro- 
duced !  Where  was  Arthur  Orton,  if  he  was  not 
sitting  there  ?  It  would  be  no  avail  for  witnesses 
to  come  forward  and  say  that  they  had  seen  some 
one  who  was  called  Arthur  Orton,  and  who  was 
not*  this  man.  Perhaps  this  man  who  had  bor- 
rowed other  men's  names  might  have  lent  his 
own."  The  defendant  himself  had  said  that 
Orton  had  changed  his  name  to  Alfred  Smith, 
"because  he  had  done  something  not  in  accord- 


28  TICHBOENE. 

ance  with  the  law."  Orton  had  been  charged 
with  bush-ranging,  which  is  australice  for  the  plain 
English  phrase  "  highway  robbery  ;  "  but  whether 
defendant  was  in  his  company  he  had  upon  inter- 
rogation refused  to  say. 

A  knowledge  of  localities  was  all-important. 
The  claimant  must  have  some  knowledge  of  the 
estates  which  he  claimed.  Therefore  soon  after  his 
arrival,  after  he  had  been  to  WajDping,  he  went  to 
the  Park.  He  went  down  to  Alresford  in  the 
neighborhood  of  Tichborne,  and  scouted  around 
the  j)lace,  but  very  surreptitiously.  He  did  not 
make  himself  known  to  the  family,  yet  he  put 
"  R.  C.  T."  on  his  trunks.  He  did,  however, 
secure  much  useful  information  from  Rous.  This 
person  now  kept  a  public-house,  but  he  had  been 
the  clerk  of  one  Hopkins,  the  old  attorney  of  the 
Tichborne  family,  and  the  information  which  he 
could  impart  was  invaluable.  He  and  the  claim- 
ant got  on  together  wonderfully  well.  But  if  the 
defendant  was  at  great  pains  to  see  the  ex-clerk,  he 
was  by  no  means  at  equally  great  pains  to  see  the 
attorney  himself.  Him,  indeed,  he  preferred  sedu- 
lously to  avoid,  and  took  care  to  prepare  himself 
very  carefully  for  their  meeting,  Avhen  at  last  it 
was  inevitable. 

Gosford  also,  his  own  old  and  trusty  friend, 
confidant,  and  counsellor,  the  trustee  and  executor 
under  his  will,  —  not  the  Australian  testament,  but 
a  will  made  by  Roger  before  leaving  England  in 
1854,  —  the  custodian  of  the  famous  sealed  packet, 
Gosford  he  was  loath  rather  than  desnous  to  en- 


TIOHBOENE.  29 

counter.  When  that  gentleman  was  at  the  trouble 
of  coming  all  the  way  to  Gravesend  to  see  the 
heir  redivivus,  the  defendant  actually  refused  to 
meet  him,  and  sent  him  back  from  a  bootless 
errand.  But  a  few  days  afterward  Gosford  made 
a  second  expedition,  and  this  time  he  found  his 
man  and  also  his  man's  new  solicitor,  Mr.  Holmes. 
The  three  came  to  London  together,  Gosford  upon 
the  road  putting  many  interrogatories  to  the  claim- 
ant. But  the  claimant  could  not  answer  them, 
at  least  not  correctly.  Especially  he  was  asked 
as  to  the  contents  of  the  sealed  packet  and  could 
offer  no  suggestion  at  all  concerning  it.  Gosford 
thereupon  made  up  his  mind  that  the  claimant 
was  an  impostor,  and  told  him  so  verj'^  bluntly  to 
his  face. 

While  thus  looking  around  Tichborne  Park, 
carefully  avoiding  every  one  whom  he  might  have 
naturally  sought  to  see,  he  wrote  to  his  "  Dear 
Cousing  Kate  "  (not  Lady  Radcliffe,  but  another 
Kate,  a  Mrs.  Greenwood)  that  his  "  head  was  so 
bad"  that  he  couldn't  come  to  see  her,  a  circum- 
stance for  which  he  expressed  his  regrets  and 
apologies.  But  he  wrote  to  his  mother  a  different 
story ;  viz.,  that  his  cousin  Katty  would  have  liked 
to  come  to  see  him,  but  that  her  husband  would 
not  permit  her  to  do  so. 

Lady  Tichborne,  his  mother,  was  at  Paris. 
Thither  he  at  last  went  to  see  her.  But  after  he 
had  come  to  the  city,  the  poor  lady  was  obliged 
to  go  to  call  upon  him,  instead  of  receiving  the 


30  TICHBORNE. 

first  visit  from  him.  He  was  lying  in  his  bed  as 
she  was  ushered  into  his  apartment,  in  the  pres- 
ence of  two  witnesses,  one  of  them  a  lawyer,  the 
other  a  "  brewer's  clerk,"  his  friend.  His  account 
of  the  interview  was  very  indistinct.  He  could 
not  say  who  spoke  first ;  or  whether  his  mother 
recognized  him  "  at  once,  or  after  a  time,  or  what ;  " 
but  she  did  recognize  him  in  time,  — indeed,  it  was 
the  errand  on  which  she  had  come,  and  she  was 
resolved  and  predetermined  upon  the  fact  of  the 
identity.  They  talked  a  long  while  :  his  answers 
to  her  questions  were  ludicrously  wide  of  accuracy. 
He  spoke  of  his  grandfather,  whom  Roger  had 
never  seen ;  said  he  was  a  private  in  the  army, 
whereas  Roger  was  an  officer ;  said  he  had  had  St. 
Vitus's  dance,  whereas  Roger  had  had  rheumatism  ; 
that  he  was  at  school  at  Winchester,  whereas  Roger 
was  educated  at  Stonyhurst,  so  far  as  he  was  at 
school  at  all.  But  the  infatuated  mother  pardoned 
every  blunder,  and  wrote :  "  He  confuses  every 
thing,  as  if  in  a  dream ;  but  it  will  not  prevent 
me  from  recognizing  him,  though  his  statements 
differ  from  mine !  "  Poor  lady !  her  part  in  the 
drama  is  sad  and  pathetic  enough ;  so  constant 
was  she  in  the  belief  that  her  son  was  alive,  so 
faithful  to  his  interests,  and  all  the  while  obliged 
by  the  circumstances  to  see  in  such  an  unfeeling, 
ignorant,  degraded  wretch,  the  child  for  whom 
she  was  doing  and  braving  so  much.  It  was  a 
most  astonishing  deception  to  practise  on  a  mother, 
—  that  must  be  admitted  :  yet  that  she  made  her 


TICHBOKNE.  81 

assertions  in  good  faith  cannot  reasonably  be  ques- 
tioned. Her  letters  give  no  very  high  idea  of  her 
intellectual  capacity. 

A  great  number  of  photographs  of  letters  were 
introduced  in  evidence.  Mr.  Hawkins  called  the 
attention  of  the  jurors  to  the  hope  expressed  at 
the  beginning  by  the  defendant,  that  the  Dowager 
had  "  got  some  of  the  letters."  At  first  no  re- 
semblance between  the  handwriting  of  Roger  and 
of  the  defendant  could  be  seen ;  but  after  1867  a 
resemblance  began  to  exist  and  to  increase,  as  the 
result  doubtless  of  careful  practice.  But  the  de- 
fendant and  Arthur  Orton  wrote  alike,  and  made 
some  identical  and  very  peculiar  errors  in  spelling. 
For  example,  they  both  wrote  "  nothink  "  for 
"nothing,"  "lick"  for  "like;"  both  used  the 
phrase  "a-going,"  and  other  like  points  of  simi- 
larity would  be  readily  noticed. 

In  connection  with  the  letters  may  be  intro- 
duced a  few  entertaining  sentences  selected  by 
Mr.  Hawkins  from  the  defendant's  diary  or  pocket- 
book.  On  one  leaf  he  had  written,  near  the  time 
when  he  first  set  up  his  pretensions  to  be  an 
English  baronet :  "  Some  men  has  plenty  brains 
and  no  money ;  some  has  plenty  money  and  no 
brains.  Surely  the  men  as  has  plenty  money  and 
no  brains  are  made  for  the  men  as  has  plenty  of 
brains  and  no  money."  *  These  were  singularly 
communistic  sentiments  to  fall  from  a  rich  member 
of  the  British  aristocracy ;    and  it  was  especially 

*  This  was  afterward  stated  to  be  an  exact  quotation  from  a 
novel  by  Miss  Braddon. 


32  TICHBORNE. 

amusing  to  find  Roger  Tichborne  formally  stating 
that  rich  and  stupid  men  were  the  proper  victims 
of  poor  and  clever  ones.  It  was  a  very  melancholy 
and  unpromising  doctrine  for  him,  but  a  very  nat- 
ural and  attractive  belief  for  Arthur  .Orton,  in  his 
character  as  claimant  of  the  Tichborne  landed 
estates  and  title.  Again-  he  wrote  :  "  R.  C.  Tich- 
borne, Bart.,  some  day,  I  hope."  And  yet  again 
he  recorded  in  a  moment  of  indignation  the  follow- 
ing amusingly  artless  and  inconsistent  outburst:  "  I, 
Thomas  Castro,  do  certify  that  them  as  thinks  that 
is  my  name  don't  know  no  think  about  it."  The 
merriment  caused  by  the  reading  of  these  extracts 
was  loud  and  prolonged.  On  another  leaf  was 
written  the  address  of  Mary  Ann  Loder,  the  old 
love  of  Orton,  but  a  person  whose  humble  existence 
could  not  reasonably  be  supposed  ever  to  have 
come  to  the  knowledge  of  the  heir  of  Tichborne. 

Every  one  of  course  remembers  the  inquiries 
that  were  prosecuted  through  both  hemispheres 
concerning  the  "  Osprey."  The  custom-house 
registers  and  all  manner  of  other  records,  not  in 
England  alone,  but  in  Australia,  in  North  America 
and  in  South  America,  were  diligently  searched 
for  traces  of  such  a  vessel.  The  story  as  devel- 
oped during  the  first  trial,  and  told  by  Mr.  Haw- 
kins in  his  opening  speech,  was  as  follows :  The 
defendant  said  he  had  been  picked  ujJ  at  sea  by 
a  passing  vessel,  and  by  her  had  been  carried  to 
the  port  of  Melbourne  in  Australia.  Eight  sailors, 
he  said,  had  been  rescued  with  him.  After  some 
hesitation  he  suggested  that  "Osprey"  was   the 


TICHBOflNE.  33 

name  of  the  craft  which  picked  him  up.  Investiga- 
tion showed  that  an  "  Osprey  "  had  indeed  arrived 
at  Melbourne  in  July,  1854,  about  four  months 
after  the  Avreck  of  the  "  Bella,"  and  that  this 
would  have  been  a  natural  time  for  her  to  have 
arrived  had  she  sailed  from  the  neighborhood 
where  the  "  Bella  "  must  have  been  lost,  direct  to 
Melbourne.  But  the  plausibility  of  this  simple 
and  not  intrinsically  improbable  tale,  was  dispelled 
by  a  series  of  circumstances.  The  eight  sailors 
were  each  entitled  to  wages :  sailors  are  well 
aware  of  their  rights  in  this  respect ;  yet  no  one 
of  these  eight  men  had  ever  been  heard  of  by  any 
person  in  any  form.  The  defendant  described  the 
"  Osprey  "  which  saved  him  as  being  much  larger 
than  the  real  "  Osprey  "  that  came  to  Melbourne, 
and  also  as  having  a  very  different  complement 
of  men.  He  gave  a  wrong  name  for  the  captain, 
after  at  first  hesitating  as  to  whether  he  could 
remember  the  name  at  all.  Two  other  names, 
also,  of  men  among  the  crew  he  finally  gave. 
They  turned  out  not  to  be  the  names  of  any  per- 
sons on  the  real "  Osprey ;  "  and  inquiry  showed  that 
all  three  of  these  names  had  been  borne  by  persons 
on  board  the  "  Middleton,"  the  ship  which,  it  will 
be  remembered,  carried  Arthur  Orton  to  Hobart 
Town  in  1852.  There  is  a  custom-house,  an 
emigration  office  and  a  Lloyd's  agency  at  Mel- 
bourne ;  but  nowhere  did  there  appear  any  trace 
of  the  arrival  of  any  shipwrecked  passengers  at 
the  specified  time.  The  log  of  the  "  Osprey"  had 
been  produced  and  no  entry  was  made  in  it  of  the 

3 


34  TICHBOENE. 

rescue  of  any  person  on  this  voyage,  —  a  most 
improbable  omission  had  the  event  really  occurred. 
Altogether  such  a  gross  degree  of  unlikelihood 
began  to  attach  to  this  narrative  concerning  the 
"  Osprey,"  that  in  course  of  time  the  defendant, 
never  very  positive  in  the  matter,  was  tempted 
to  change  his  mind  concerning  her. 

Strangely  doubtful  at  first  as  to  the  name  of  the 
vessel  to  whose  opportune  appearance  he  had  owed 
his  life,  and  in  which  he  had  spent  nearly  four 
months  of  voyaging,  he  now  suggested  that  it 
was  the  "  Themis."  There  was  a  story  that  a 
"  Themis  "  had  landed  a  second-class  passenger  at 
Melbourne  in  1854.  This  passenger  had  given  to 
the  captain  a  check  for  seventeen  or  eighteen 
pounds,  which  had  never  been  paid.  The  defendant 
now  became  quite  sure  that  it  was  the  "  Themis  " 
that  had  saved  him.  He  said  he  remembered  giving 
the  check  to  the  captain,  and  that  he  had  heard 
that  the  check  had  been  presented  at  his  banker's, 
but  that  the  funds  which  should  have  been  standing 
there  to  his  credit  had  been  withdrawn,  and  though 
his  relatives  acknowledged  the  genuineness  of  the 
check,  they  had  refused  to  pay  it,  and  it  had  been 
dishonored.  He  hastened  down  to  Liverpool,  to 
follow  up  this  new  thread,  and  thence  wrote  very 
hopefully : ' "  It  is  now  beyond  a  doubt  it  was  the 
'  Themis '  picked  me  up.  The  owners  and  agents 
are  doing  all  they  can  to  find  me  evidence."  He 
even  saw  the  "  Themis,"  seemed  to  remember  her, 
went  on  board  of  her,  and  at  last  actually  went 
so  far  as  to  point  out  the  room  which  he  said  that 


TICHBORNE.  35 

he  occupied  in  her.  But  unfortunately,  before  the 
end  was  reached,  the  investigation  was  somewhat 
over  warmly  and  thoroughly  pursued.  For  the  log 
of  the  "  Themis  "  was  found,  and  showed  no  record 
of  the  rescue  of  any  shipwrecked  mariners  ;  the 
check  had  never  been  heard  of  at  the  banker's, 
nor  by  an}^  of  Roger's  family ;  and  to  crown  the 
whole  the  first  mate  of  the  "  Themis  "  in  1854 
turned  up  in  person,  and  absolutely  shattered  the 
whole  story.  So  the  defendant  was  left  very  nearly 
in  the  singular  condition  of  one  saved  from  drown- 
ing, yet  without  a  rescuer.  As  a  pis  alter  he  came 
back  to  the  story  of  the  "  Osprey,"  which  with  all 
its  weak  points,  —  and  it  had  several,  —  was  yet  the 
best  that  could  be  set  up. 

As  earl}^  as  August,  1850,  Roger  had  avowed  his 
love  for  his  cousin.  Miss  Kate  Doughty,  the  heroine 
as  she  may  be  called  of  this  novelette.  On  January 
11,  1852,  the  attachment  was  acknowledged  to  the 
parents,  and  in  February  following,  they, gave  to  it 
a  kind  of  qualified  and  conditional  sanction.  But, 
as  it  would  appear,  Roger's  conduct  was  far  from 
becoming  such  as  the  parents  of  the  young  lady 
desired  that  it  should  be  ;  and  a  due  regard  for  their 
daughter's  welfare  impelled  them  in  the  succeed- 
ing summer  to  break  off -the  match.  Roger  was 
apparently,  very  plainly  spoken  to  by  Sir  Edward 
Doughty  on  this  occasion ;  for  he  afterwards  said 
to  Kate  that  after  her  father's  words  to  him  it 
was  no  longer  possible  for  him  to  marry  her.  Yet 
he  seems  not  to  have  dismissed  all  hope  of  some 
ultimate  favorable  turn  in  the  affair.     It  was  in 


86  TICHBORNE. 

this  time  of  anxiety,  of  mingled  despair  and  hope, 
that  Roger  deposited  the  sealed  packet  with  his 
friend  and  counsellor  Gosford ;  also  afterward, 
having  his  foreign  tour  in  his  mind,  he  made  his 
will.  On  the  fifth  of  January,  1853,  he  wrote  to 
Slaughter:  "My  private  wishes  and  intentions,  as 
I  intend  to  have  them  carried  out  if  I  live,  I  have 
confided  to  Mr.  Gosford,  and  I  request  you  and 
Mr.  Gosford  to  act  as  trustees  and  executors  of  my 
will."  January  17  he  wrote  to  Gosford  :  "  I  have 
written  my  will  and  left  it  with  Slaughter ;  and 
the  only  thing  I  have  left  out  is  about  the  church, 
which  I  will  only  build  under  the  circumstances 
which  I  have  left  with  you  in  writing." 

When  the  defendant  was  questioned  in  the 
witness-box  as  to  the  contents  of  this  mysteri- 
ous packet,  he  manifested  extreme  reluctance  to 
reply.  But  being  hard  pressed  upon  cross-exam- 
ination he  stated  that  his  unwillingness  arose  out 
of  "  considerations  of  delicacy  for  others."  The 
contents  of  the  packet  had  in  real  truth  never 
been  disclosed  to  the  defendant,  and  unless  in- 
deed he  were  the  genuine  Sir  Roger  he  had  had 
no  means  of  discovering,  or  even  distantly  sur- 
mising, what  they  might  be.  At  first  he  under- 
stood from  Gosford  that  the  document  confided  to 
him  was  still  in  existence  in  his  hands,  but  after 
a  time  he  learned  that  it  had  been  destroyed. 
Emboldened  by  this  discovery  he  ventured  to 
remember  more  about  it,  and  in  1868  he  made 
the  following  affidavit  in  Chancery :  "  Shortly 
before  leaving  England,  in  March,  1852  [he  should 


TICHBORNE.  37 

have  said  1853,  which  was  the  year  of  Roger's 
departure],  I  placed- in  the  hands  of  Gosford  the 
document,  with  instructions  not  to  open  it  except 
on  certain  events,  one  of  which  I  know  has  not 
happened,  and  the  other  I  hope  has  not  hap- 
pened." 

Jn  the  witness  box  he  stated  that  the  engage- 
ment between  himself  and  his  cousin  was  broken 
oif  in  August  of  the  year  1852  ;  and  that  the  next 
time  that  he  saw  her  after  this  change  in  their 
relationship  to  each  other  was  in  November  or 
December  of  that  year.  He  was  then  staying  at 
Winchester;  but  he  saw  her  at  Tichborne  and 
there  met  her  and  walked  with  her,  and  told 
her  that  after  what  her  father  had  said  he  could 
not  marry  her.  To  the  question  what  were  the 
"  certain  events  "  referred  to  in  his  affidavit  above 
quoted,  he  said  that  the  one  which  he  knew  had 
not  happened  was  his  own  return  before  his 
cousin's  marriage.  But  afterward,  being  asked 
the  sftme  question  again,  he  said,  "I  don't  know, 
—  I  suppose  it  was  my  death."  The  other  event, 
that  which  he  hoped  had  not  happened,  he  strove 
hard  to  evade  mentioning.  But  at  last  in  reply 
to  repeated  and  obstinate  inquiries  he  said:  "  The 
confinement  of  my  cousin."  The  Attorney-Gen- 
eral then  said  "  solemnly,"  while  Lady  Radcliffe, 
that  was  Miss  Kate  Doughty,  sat  in  full  view  be- 
neath him  in  the  court-room : 

Do  you  mean  to  swear,  before  the  judge  and  jury,  that 
you  seduced  this  lady  ? 

Witness.   I  most  solemnly,  to  my  God,  swear  it. 


38  TICHBOENE. 

Atty.-  Genl.   When  and  where  did  it  happen  ? 

Witness.   At  the  mill. 

Atty.-Oenl.    When? 

Witness.    Not  long  after  I  came  from  Ireland. 

Atty.- Genl.   When? 

Witness.   About  the  month  of  July  or  August. 

Atty.-  Genl.   Of  what  year,  —  1852  ? 

Witness.  It  was  about  the  latter  end  of  July  or  the 
beginning  of  August. 

Atty.-  Genl.  Was  it  before  or  after  the  breaking  off  of 
the  engagement  by  Sir  Edward  ? 

Witness.   Before. 

Atty.-Genl.  You  say  this  took  place  at  the  mill.  Where 
is  the  mill  ? 

Witness.  Almost  facing  the  house,  in  the  village  of  Tich- 
borne. 

Atty.-  Genl.   Were  you  staying  in  the  house  ? 

Witness.    I  was. 

Atty.-Genl.  How  long  before  the  engagement  was 
broken  off? 

Witness.   About  a  week  or  ten  days. 

Atty.-  Genl.  Do  you  mean  to  say  you  left  your  cousin 
with  child? 

Witness.   No,  I  didn't  say  so. 

Atty.-Genl.  You  left,  you  know,  in  March,  1853.  You 
say  you  seduced  her  in  July  or  August,  1852,  and  before 
the  breaking  off  of  the  engagement.  You  -say  you  never 
saw  her  but  once  after  that  in  the  village,  and  you  spoke 
to  her  about  her  confinement  ? 

Witness.  I  didn't  say  so.  She  wished  to  impress  it  on 
me. 

Atty.-  Genl.   When  and  where  did  she  tell  you  ? 

Witness.  To  the  best  of  my  belief,  when  I  met  her  in 
the  village. 


TICHBOENB.  39 

Atty.-Genl.  Did  you  make  any  further  inquiry  after- 
wards ? 

Witness.   No. 

Does  all  this,  said  Mr.  Hawkins,  sound  credible  ? 
But  there  was  further  proof.  Defendant  after 
giving  these  replies  was  pressed  as  to  the  packet. 
He  said  it  was  dated  in  November,  1852,  was 
read  over  by  him  to  Gosford  and  then  intrusted 
to  Gosford's  keeping  ;  that  it  related  to  his  cousin's 
being  ence\nte.  In  1862  he  gave  to  his  attorney 
this  version  of  it : 

In  the  event  of  my  father  being  in  possession  before 
my  return  or  dying  before  my  return,  he  (Gosford)  was  to 
act  for  him  according  to  instructions  contained  in  the  docu- 
ment. In  the  first  place  he  was  to  have  Upton  to  live  at 
and  there  to  manage  the  Avhole  of  the  estate.  He  was  to 
keep  the  farm  in  hand  and  show  the  greatest  kindness  to 
my  cousin  Kate,  and  let  her  have  every  thing  she  required. 
My  cousin  gave  me  to  understand  she  was  enceinte  and 
pressed  me  very  hard  to  marry  her  at  once.  I  did  not 
believe  such  was  the  case  nor  have  I  since  heard  it  was. 
I  always  believed  it  was  said  to  get  me  to  marry  her  at 
once.  For  this  my  father  try  and  persuade  me.  It  also 
refer  to  the  village  at  Prior's  Dene.  lie  (Gosford)  was  to 
have  the  cottages  repaired  and  also  to  improve  the  estate 
in  general.  Was  also  to  make  arrangements  for  Kate  to 
leave  England,  if  that  was  true.  Both  Gosford  and  wife 
urged  me  very  hard  to  marry  her  at  once.  I  do  not  think 
Mrs.  Gosford  knew  about  Kate. 

(Signed)  R.  C.  D.  Tichborne. 

Being  driven  at  the  trial  to  give  his  recollection 
of  the  writing  itself,  he  wrote  as  follows :  — 


40  TICHBORKE. 

Cheriton,  Nov.  1852. 

If  it  be  true  that  my  Cousin  Kate  Doughty  should  prove 
to  be  enceinte^  you  are  to  make  all  necessary  arrangements 
for  going  to  Scotland,  and  you  are  to  see  that  Upton  is 
properly  prepared  for  her  until  I  return  or  she  marries. 
You  are  to  show  great  kindness  to  her  and  let  her  have 
every  thing  she  requires.  If  she  remains  single  until  I 
come  back  I  will  marry  her.  In  the  Event  of  my  Cousin's 
death  you  are  to  take  charge  of  the  Estate  on  my  behalf, 
to  keep  the  home  farm  and  to  repair  the  Cottages  at  Prior's 
Dean. 

(Signed)  R.  C.  Ticiiborne. 

Not  a  word,  it  will  be  observed,  was  said  in 
either  of  these  expositions  concerning  that  church, 
which  Roger  had  written  to  Gosford  that  he  had 
not  mentioned  in  his  will,  and  would  "  only  build 
under  the  circumstances  which  I  have  left  with 
you  in  writing."  The  defendant  also  cut  himself 
off  from  the  assistance  of  supposing  that  there 
might  have  been  some  other  instrument  given  to 
Gosford,  for  he  expressly  swore  that  there  was  no 
other ;  and  Gosford  corroborated  the  testimony. 

But  the  confidence  which  led  the  claimant  to 
furnish  contents  for  the  sealed  packet  was  mis- 
placed. For  though  Gosford's  copy  had  indeed 
been  destroyed,  yet  a  duplicate  existed  ;  a  dupli- 
cate which  the  defendant,  not  being  the  real  Sir 
Roger,  had  never  known  or  heard  of  or  suspected. 
That  duplicate  had  been  written  later ;  indeed 
it  bore  date  June  22,  1852,  but  otherwise  it  was 
identical  with  the  original.  That  duplicate  had 
been  given  to  Miss  Doughty  and  had  most  for- 


TICHBORNE.  41 

tunately  been  preserved.     It  would  be  produced 
at  the  present  trial.     Its  language  was  as  follows : 

TiCHBORNE  Park,  June  22,  1852. 

I  make  on  this  day  a  promise  that  if  I  marry  my  cousin, 
Catherine  Doughty,  this  year,  before  three  years  are  over 
at  the  latest  to  build  a  church  or  chapel  at  Tichborne  to 
the  Holy  Virgin,  in  thanksgiving  for  the  protection  which 
she  has  thrown  over  us,  and  in  praying  God  that  our  wishes 
may  be  fulfilled. 

(Signed)  R.  C.  Tichborne. 

Here  was  the  explanation  about  the  church. 
The  packet  and  the  letter  of  January  17,  1852,  to 
Gosford,  were  consistent. 

But  incredible .  as  the  whole  of  the  defendant's 
story  appeared,  even  when  thus  told,  Mr.  Haw- 
kins said  that  he  proposed  to  furnish  actual  proof 
by  dates  of  the  impossibility  of  the  seduction.  Had 
it  happened  early  in  the  year  the  results  must 
have  been  known  when  Roger  and  his  cousin  "  met 
and  walked  together"  in  November  or  December. 
But  in  addition  to  such  circumstantial  and  infer- 
ential proof  the  witness  himself  had  placed  the 
occurrence  in  the  latter  part  of  July  or  beginning 
of  August.  It  was  fortunate  that  he  was  thus 
nailed  to  the  definite  point  of  time  ;  for  the  where- 
abouts of  Roger  could  now  be  adduced  to  show 
the  story  to  be  impossible.  An  alibi  of  the  sup- 
posed seducer  could  be  proved.  In  the  early  part  of 
the  year  Roger  was  in  Ireland  with  his  regiment. 
In  June  he  came  back  with  it,  and  still  remaining 
with  it,  was  sent  to  Canterbury.     He  then  ob- 


42  TICHBORNE. 

tained  a  leave  of  absence  from  June  15  to  23 : 
went  to  London  for  a  visit  of  three  days  ;  on  June 
19  left  London  and  came  with  Lady  Doughty  and 
her  daughter  Kate  to  Tichborne ;  on  June  22  he 
left  Tichborne  Park  and  returned  to  his  regiment 
at  Canterbury.  These  movements  of  the  real 
Roger  were  unknown  to  this  defendant,  who  had 
not  the  knowledge  requisite  to  enable  him  to  fix  the 
visit  in  June.  Rather  he  had  chosen  to  connect 
it  with  his  uncle's  final  disapproval  of  the  match, 
which  did  not  take  place  until  much  later.  More- 
over his  testimony  required  a  visit  lasting  for  a 
week  or  ten  days,  because  he  said  the  event  oc- 
curred by  that  space  of  time  before  the  disruption 
of  the  engagement,  which  arose  out  of  a  personal 
interview  between  his  uncle  and  himself.  The 
visit  of  two  or  three  days  in  June,  therefore, 
would  not  serve  his  turn  in  this  respect  either. 
During  that  short  period  Mr.  Hawkins  admitted 
that  it  Avas  probable  enough  that  the  cousins 
walked  and  rode  together,  but  it  was  extremely 
"  improbable  that  these  young  people  would  have 
been  allowed  to  be  alone  with  each  other  under 
the  circumstances,"  i.e.,  of  their  quasi  engagement. 
Mrs.  and  Miss  Nangle,  aunt  and  cousin  of  Roger, 
were  staying  at  Tichborne  Park  all  this  while,  and 
remained  there  till  June,  1853,  after  Roger  had 
sailed.  They  would  be  called  as  witnesses,  and 
would  swear  that  Roger  was  never  at  the  Park 
after  June  22,  1852.  Lady  Doughty,  had  been 
examined  on  her  dying  bed,  and  then  and  there 
she  also  swore  that  Roger  had  not  been  at  Tich- 


TICHBOENE.  43 

borne  after  June  22.  Letters  written  by  Roger 
himself  from  Canterbury  and  elsewhere  would  be 
produced  and  would  also  disprove  the  possibility  of 
his  having  been  at  Tichborne  in  July  or  August. 

Lady  Radcliffe  would  be  placed  upon  the  stand, 
and  would  swear  that  the  whole  story  was  a  base 
and  infamous  fabrication. 

If  all  this  evidence  failed  to  satisfy  the  jury,  "  I 
declare  to  God,"  exclaimed  Mr.  Hawkins,  "  I  do 
not  knoAV  what  evidence  could  be  required,  or  by 
what  evidence  a  lady  of  honor  and  character  could 
vindicate  her  character  against  a  foul  aspersion." 

A  very  important  portion  of  the  case  for  the 
prosecution  consisted,  said  Mr.  Hawkins,  in  a  com- 
parison of  certain  physical  peculiarities  and  marks. 
Upon  the  person  of  Roger  Tichborne  were  certain 
indelible  and  ineradicable  marks  which  did  not 
exist  upon  this  defendant ;  and  upon  this  defend- 
ant were  congenital  marks  which  were  not  upon 
Roger  Tichborne,  and  artificial  marks  the  presence 
of  which  upon  Roger  Tichborne  was  not  satisfac- 
torily accounted  for.  Upon  the  arm  of  Roger 
Tjchborne  had  been  tattooed  the  emblems  of  the 
heart,  cross,  and  anchor,  with  the  initials  R.  C.  T. 
INIany  persons  had  seen  these  marks  before 
Roger's  departure  for  South  America.  This  de- 
fendant nbt  only  had  no  present  tattoo  marks  on 
his  arm ;  but  he  swore  in  the  ejectment  suit  that 
he  never  had  been  subjected  to  the  process.  Never- 
theless he  had  a  scar  which  the  prosecution  ex- 
pected to  show  was  the  result  of  an  effort  to  erase 
by  cauterizing  the  tattooing  of  the  initials  A.  O. 


44  TICHBOENE. 

In  Roger's  childhood  he  had  on  his  arm  an  issue, 
kept  open  by  his  mother's  directions  for  several 
years.  This  had  been  by  some  persons  confounded 
with  a  seton,  but  was  quite  different  from  a  seton 
and  had  left  a  very  different  mark.  On  the  de- 
fendant's arm  were  the  traces  of  an  attempt  to 
form  a  seton,  though  there  were  no  marks  of  an 
issue.  The  defendant  had  evidently  heard  that 
Roger  had  had  a  seton,  and  hence  this  effort  to 
fabricate  the  apparent  remains  of  one.  Roger's 
ears  adhered  firmly  to  his  cheeks ;  the  defendant's 
ears,  on  the  contrary,  had  unusually  pendant  lobes. 
Roger  had  been  bled  in  the  ankles,  and  the  bleed- 
ing had  left  inerasible  scars ;  the  defendant  had 
upon  his  ankles  certain  scars  not  of  a  real  bleeding, 
but  clumsily  fabricated  to  simulate  such  genuine 
vestiges  of  the  actual  operation.  The  defendant 
had  the  brown  birth-mark  on  his  side  ;  but  Roger 
had  not  been  thus  marked.  The  defendant  still 
suffered  from  the  "  twitching  "  of  the  eyebrows 
which  was  the  remnant  of  the  St.  Vitus's  dance 
which  Arthur  Orton  had  had  in  his  youth  and 
which  had  never  been  fully  eliminated  from  his 
constitution.  This  man  had  a  scar  on  the  back  of 
his  head  which  he  said  was  caused  by  a  fall  which 
happened  to  him  in  his  childhood  in  Brittany. 
Roger  had  indeed  had  such  a  fall,  which  some  of 
the  defendant's  friends  and  informants  in  the  fam- 
ily had  doubtless  mentioned  to  him,  but  the  contu- 
sion had  been  at  the  side  of  the  head  near  the 
temple  and  had  left  no  scar.  In  the  course  of  the 
former  trial  it  had  been  suggested  that  Roger  had 


TICHBOKNE.  45 

a  peculiar  thumb  and  that  this  man  had  it.  The 
suggestion  was  not  made  until  after  the  seventieth 
day  of  the  trial.  In  fact  Roger  had  no  peculiarity 
of  the  thumb ;  and  this  sudden  illumination  had 
come  to  the  mind  of  the  claimant  from  the  exam- 
ination of  a  daguerreotype  of  Roger,  in  which, 
either  because  the  plate  had  been  rubbed  or  from 
an  original  defect,  the  appearance  of  the  thumb 
was  rendered  somewhat  deformed. 

In  addition  to  all  this  mass  of  living  testimony 
which  I  propose  to  offer,  said  Mr.  Hawkins,  in 
closing  his  long  address,  "I  shall  lay  before  you 
also  the  evidence  of  the  dead.  In  December  last, 
the  late  Lady  Doughty,  with  intellect  unclouded, 
closed  her  eyes  in  death.  She  ended  her  days  in 
peace;  and  ere  she  died  —  in  the  hour  of  her  dfeatli 
—  and  with  the  consciousness  that  in  a  few  short 
moments  she  would  enter  into  the  presence  of  her 
God,  to  whom  she  swore,  she  recorded  her  oath 
that  the  defendant  was  not  the  man  he  had  falsely 
sworn  himself  to  be." 

As  a  foundation  and  explanation  for  the  testi- 
mony of  the  government  witnesses  in  this  case  it 
was,  of  course,  necessary  to  produce  the  evidence 
given  by  the  defendant  in  the  civil  proceedings. 
The  report  of  this  evidence  as  written  out  by  the 
short-hand  reporters  covered  several  thousand 
pages.  The  prosecuting  counsel  proposed  to  read 
a  part  of  it ;  then  to  put  in  their  evidence  bearing 
upon  that  part ;  then  to  read  more  and  adduce 
more  evidence,  and  thus  to  proceed  step  by  step 
through  all  that  was  material  to  their  case,  bringing 


46  TICHBORNE. 

the  defendant's  testimony  and  their  own  contra- 
dicting evidence  into  as  close  juxtaposition  as  pos-. 
sible.  Dr.  Kenealy,  for  obvious  reasons,  strongl}'^ 
opposed  this  scheme  and  insisted  that  the  whole 
mass  of  the  defendant's  examination,  both  in  chief 
and  upon  cross  interrogatories,  should  be  read 
through  continuously  at  the  outset  of  this  trial, 
and  should  not  be  furnished  to  the  jury  piecemeal 
in  carefully  prepared  and  pertinent  connection. 
He  said  that  he  and  his  colleague  were  so  far  defi- 
cient in  a  minute  knowledge  of  the  prior  case  that 
this  course  was  essential  to  them  in  the  conduct  of 
the  present  one.  The  point  was  of  the  first  impor- 
tance for  the  government,  since  to  have  had  it 
determined  against  them  would  have  obliged  them 
to  rely  upon  the  memories  and  clear-headedness 
of  the  jurors  to  a  perilous  and  unreasonable  extent. 
After  an  eager  argument,  however,  the  court  ruled 
for  the  prosecution. 

The  defendant  had  testified  that  he  had  lived  in 
Paris  with  his  father  and  mother  during  his  child- 
hood, until  he  was  sent  to  Stonyhurst  in  1845.  At 
first  he  had  stated  that  he  went  to  school  at  Win- 
chester, and  not  at  Stonyhurst ;  but,  having  been 
obliged  to  acknowledge  and  correct  this ,  error,  he 
afterward  testified  that  he  never  went  to  a  school 
at  all  until  he  went  to  Stonyhurst ;  that  previously 
he  had  only  a  private  tutor,  and  that  he  had  had 
only  one  such,  a  M.  Chatillon,  who  taught  him  in 
Paris  until  the  time  of  his  leaving  there ;  that  he 
never  studied  Greek  or  Latin,  —  indeed  he  did  not 
know  the  difference  between  them ;  that  he  studied 


TICHBORNE.  47 

no  chemistry,  and  in  fact  supposed  it  meant  the  art 
of  mixing  drugs  ;  that  he  had  no  memory  of  per- 
sons named  respectively  Lefevre,  Jollival,  Cornet, 
Laforet,  and  Dupanloup ;  that  he  did  not  remem- 
ber Gousset  the  valet,  who  for  years  was  in  personal 
attendance  on  Sir  James  Tichborne  ;  that  the  Abb^ 
Salis,  his  mother's  confessor,  confessed  him,  or  at 
least,  as  he  preferred  to  put  it  on  cross-examination, 
he  confessed  to  the  abbd,  "  if  he  did  to  any  one  " 
in  Paris. 

The  Abb^  Salis,  "  a  venerable-looking  ecclesiastic 
of  the  old  French  school,"  was  called  as  the  first 
witness  for  the  Crown.  He  was  wholly  ignorant  of 
English,  and  had  to  give  his  evidence  through  the 
medium  of  an  interpreter.  He  was  tutor,  but  never 
on  any  occasion  had  acted  as  confessor,  to  the  young 
Tichborne  ;  was  not  confessor  to  his  mother,  Lady 
(then  Mrs.)  Tichborne.  The  Aacar  of  the  Made- 
leine and  Lefevre  were  the  confessors.  Saw  the 
young  man  in  Paris,  when  he  came  to  bid  farewell 
to  his  mother,  before  going  to  South  America. 
Was  always  on  the  most  kindly  terms  with  him, 
and  then  parted  with  him  in  the  most  friendly 
manner.  The  young  Tichborne  spoke  French  per- 
fectly ;  began  to  translate  Latin  under  the  abba's 
tuition.  Witness  was  then  asked  if  the  defendant 
was  Roger  Charles  Tichborne,  and  replied  emphat- 
ically "iVbw.^"  A  juror  asked,  "Is  there  any 
resemblance  to  him  ?  "  The  abb^,  laying  his  hand 
upon  his  heart  and  speaking  with  Gallic  earnest- 
ness, much  to  the  amusement  of  his  English 
auditors,  again  responded  "iVbw.^"     To  Dr.  Ke- 


48  TICHBORNE. 

nealy  the  witness  then  said,  that  Roger  was  "  slow 
in  mind  and  disposition,"  "  not  lazy,  but  idle,"  yet 
withal  "  a  perfect  gentleman."  In  1850  or  1851 
witness  had  seen  the  tattoo  marks  on  Roger's  arm, 
but  never  mentioned  them  to  Lady  Tichborne, 
because  they  were  so  "  disagreeable."  Lady  Tich- 
borne told  this  witness  of  her  son's  return,  and 
hoped  he  would  recognize  the  wanderer.  But 
the  abbe  had  already  been  prepossessed  against  the 
claimant,  by  hearing  from  Chatillon  that  he  was 
not  the  real  Roger.  He  had  preferred  to  believe 
Chatillon  rather  than  Lady  Tichborne.  "  Was  not 
she  a  truthful,  honorable  person  ?  "  asked  Kenealy. 
"  Elle  avait  la  tete  malade^''  responded  the  abb^, 
which  is  translated  in  the  columns  of  the  "  Times," 
and  doubtless  was  so  rendered  also  by  the  inter- 
preter, by  the  unpleasant  phrase,  "  She  had  a 
diseased  brain."  Being  asked  to  explain  his 
meaning  he  said  that  she  had  '■'•  une  idee  fixe^^ 
intending  thereby  to  designate  her  resolute  belief 
in  the  survival  of  her  son.  It  was  suggested 
to  him  that  Napoleon  also  had  "  une  idee  fixe ;  " 
and  Kenealy  reiterated  his  aforesaid  interrogatory, 
badgering  the  bewildered  abb(3  in  approved  fashion, 
but  to  the  same  question  ever  receiving  the  same 
reply,  until  Chief  Justice  Cockburn  said  it  was 
evident  that  the  witness  also  had  "  une  idee  fixe^"* 
and  the  matter  had  to  be  dropped. 

The  abb<3  remarked  that  Lady  Tichborne  was 
"  tre%  distinguSe^'^  but  was  bent  upon  "  pursuing  a 
phantom."  He  further  said,  that  she  had  even 
approached  him  with  offers  of  bribes  if  he  would 


TICHBORNE.  49 

recognize  the  claimant  as  her  son.  He  repeated 
the  words  used  on  this  occasion,  and  certainly  they 
could  bear  but  one  sensible  interpretation.  He  did 
not  see  the  persons  Avho  confessed  to  him  in  the  con- 
fessional ;  he  was  able,  however,  to  recognize  them 
by  their  voices  with  accuracy  and  certainty.  This 
defendant's  voice  was  no  more  like  Roger's  than  day 
is  like  night.  Between  1839  and  1845  Roger  had 
as  tutors,  at  different  times,  the  abbd  and  Messrs. 
Laforet,  Jollival,  and  Cornet.  A  letter  from  Roger 
to  the  abb^,  written  in  French  from  Stonyhurst, 
and  inquiring  about  Cornet,  was  put  in  evidence. 

Pere  Lefevre  was  next  called,  a  priest  whose 
very  name  the  defendant  professed  never  to  have 
heard.  He  was  Roger's  confessor  in  Paris  for 
many  years,  and  prepared  him  for  his  first  com- 
munion. Told  to  Roger  very  often  the  story  of 
how  his  hair  had  turned  white  early  in  his  youth 
by  reason  of  a  terrible  dream  he  had  had ;  a  re- 
markable tale,  to  which  Roger  always  listened 
with  deep  interest  and  wonder,  but  of  which  de- 
fendant could  be  brought  to  remember  nothing. 
Had  seen  the  tattoo  marks  upon  the  lad's  arm, 
and  had  reproached  Roger  for  them,  saying  that 
they  were  fit  only  for  soldiers  and  sailors  and  were 
"  not  seen  in  good  society."  He  and  Roger  were 
ever  on  the  most  intimate  and  affectionate  terms. 
Defendant  was  not  Roger  and  did  not  resemble 
Roger.  Shortly  before  sailing  Roger  confessed 
to  witness.  The  witness  was  asked  on  cross- 
examination,  whether  Roger  did  not  confess  to 
him  the  seduction  of  his  cousin,  and  repUed  that 

4 


60  TICHBOENE. 

he  did  not :  "  It  would  have  been  infamy  to  dis- 
close it  if  he  had  said  it  in  confession ;  but  he 
never  said  it.  If  he  had  said  it  to  me  in  confession, 
I  should  not  have  known  it ;  but  I  say  that  it  was 
never  said.^'  When  he  heard  of  the  appearance 
of  Roger,  or  of  one  calling  himself  so,  he  at  once 
said  that  if  it  were  indeed  Roger  he  should  know 
it,  for  Roger  "  would  come  at  once  to  throw  him- 
self into  his  arms."  But  the  claimant  showed  no 
haste  to  see  this  witness  and  no  propensity  to  rush 
into  his  embrace.  Defendant's  tones  were  wholly 
unlike  Roger's.  Roger  had  confided  to  this  wit- 
ness his  love  for  his  cousin,  which  seemed  ardent, 
but  "  respectful  beyond  expression  ; "  also  his  in- 
tention, if  he  should  succeed  in  marrying  her,  of 
building  a  chapel,  on  which  he  would  spend,  he 
said,  200,000  francs. 

The  defendant  had  said  in  the  civil  cause  that 
he  had  been  prepared  in  Paris  for  his  first  com- 
munion by  the  aid  of  a  book  called  the  Garden 
of  the  Soul.  This  proved  to  be.avohmie  much 
used  by  Roman  Catholics  in  England,  but  it  had 
never  been  heard  of  by  Salis  or  Lefevre. 

The  report  of  the  evidence  given  by  defend- 
ant at  the  previous  trial  had  thus  far  been  read 
by  Mr.  Hawkins  very  "  dramatically ;  "  but  at 
this  point  Dr.  Kenealy  interfered  to  check  the 
dangerous  effect  produced  by  this  oratorical  re 
hearsal  and  insisted  that  for  the  future  the  read- 
ing should  be  done  by  the  officer  of  the  court. 
His  request,  as  calling  for  an  undeniable  right, 
was  granted. 


TICHBORNB.  61 

Chatillon,  the  Parisian  tutor  of  Roger,  was  next 
called.  He  taught  him  daily  from  1834  till  1840, 
not,  as  averred  by  defendant,  till  1845.  After  him 
Roger  had  some  half  dozen  tutors,  the  name  of 
not  one  of  whom  could  defendant  remember  ever 
to  have  heard.  Roger  was  at  the  sSminaire  of  M. 
Dupanloup  near  Paris  for  a  short  time ;  but  this 
defendant  had  been  unable  to  tell,  when  interro- 
gated, what  a  sSminaire  or  a  seminary  was,  even 
confusing  it  with  a  cemetery !  and  swore  he  had 
never  been  to  any  school  at  Paris  or  elsewhere, 
prior  to  going  to  Stonyhurst.  Roger,  the  witness 
said,  always  spoke  French,  even  during  his  visits 
to  England,  and  when  in  the  company  of  his 
parents,  who  likewise  habitually  used  that  lan- 
guage. When  witness  saw,  this  defendant  in 
Paris  he  went  to  his  lodgings  with  Lady  Tich- 
borne.  Witness  took  the  precaution  to  request 
her  not  to  mention  his  name,  being  anxious  to  see 
whether  defendant  would  be  able  to  recognize  him. 
But  her  ladyship  at  once  introduced  the  witness 
by  name  to  the  defendant.  Chatillon  saluted  him, 
but  saw  directly  after  the  first  greeting  was  passed 
and  so  soon  as  he  could  look  the  defendant  well 
in  the  face,  that  he  was  not  the  real  Roger.  Wit- 
ness undertook  to  converse  with  him,  but  defend- 
ant was  totally  ignorant  of  French  and  had  to  use 
an  interpreter.  Tried  to  recall  to  defendant  divers 
incidents,  as,  for  example,  a  farewell  dinner  which 
took  place  just  before  Roger's  departure  for  South 
America ;  but  defendant  could  at  that  time  re- 
member none  of  these  matters.     During  the  inter- 


62  TICHBORNE. 

view  defendant  sat  writing,  concealing  his  features 
with  a  handkerchief.  Afterward,  when  Chatillon 
again  sought  to  call  upon  defendant  and  upon  the 
Dowager  Lady  Tichborne,  he  was  told  that  they 
were  ill  and  could  not  see  him.  Witness  swore 
positively  that  he  discovered  no  resemblance  in 
appearance  or  voice  between  the  real  Roger  and 
defendant.  Witness  had  seen  the  tattoo  marks, 
representing  a  heart,  cross,  anchor,  and  the  initials 
R.  C.  T.  on  Roger's  arm ;  had  often  seen  him 
naked,  but  had  never  observed  any  brown  mark 
on  his  body. 

The  fall  at  Pornic  in  Brittany  was  a  grave  event 
in  Roger's  childhood,  and  well  remembered  by  his 
tutor.  Roger  lay  insensible  for  thirteen  days  after 
it.  B  ut  the  blow  was  not  upon  the  back  of  the  head, 
but  close  to  his  temple,  and  it  left  no  mark  visible 
after  his  recovery.  Defendant  had  knowledge 
of  the  occurrence  of  such  a  fall,  but  he  had  placed 
the  contusion  at  the  back  of  his  head  and  under- 
took to  show  the  scar. 

Madame  Chatillon  was  next  called.  She  noticed 
the  tattoo  marks,  just  above  Roger's  wrist,  one  day 
as  he  was  talking  to  her.  He  told  her  he  had 
made  them  with  a  pin  and  gunpowder.  There 
was  a  heart,  cross,  anchor,  and  his  initials.  But 
the  sketch  drawn  of  them  by  her  husband  did  not 
seem  to  her  an  accurate  representation. 

M.  D'Aranza,  a  Spanish  gentleman,  came  next 
upon  the  stand.  He  was  an  intimate  and  confi- 
dential friend  of  Roger  in  Paris,  but  the  defendant 
had  been  unable  to  remember  his  name  or  existence. 


TICHBORNE.  SE 

It  was  manifest,  he  said,  that  Roger's  education 
had  been  neglected.  But  he  spoke  French  fluently, 
and  "  such  as  it  was,  it  was  the  French  of  a  gentle- 
man." He  spoke  "  bad  English,  but  not  vulgar. 
Vulgar  was  not  the  word.  He  mixed  up  French 
and  English  together."  His  English  was  "im- 
perfect or  broken."  The  habitual  language  of 
his  conversation  was  French,  which  was  also 
customarily  used  by  his  parents,  especially  by  his 
mother.  Roger  was  always  gentlemanly  in  feel- 
ings and  behavior.  Witness  was  positive  that 
defendant  was  not  Roger. 

Gousset,  valet  of  Roger's  father  for  fourteen 
years  in  Paris,  next  testified.  His  name  and  exist- 
ence also  had  escaped  the  defendant's  memory, 
though  as  an  old  family  servant  Roger  had  always 
manifested  a  kindly  interest  in  him  and  had  even 
been  to  see  him  and  bid  him  good-by  before  sail- 
ing for  South  America.  Had  often  seen  Roger 
stripped  for  the  bath  and  observed  no  brown  mark 
on  his  side,  but  had  seen  a  "cautery"  (meaning 
thereby,  as  was  explained,  an  issue)  on  his  arm. 
Witness  was  asked  whether  he  looked  for  marks, 
and  replied,  "  The  question  is  not  well  put.  I  did 
not  look  for  them  ;  he  had  none.  If  you  see  a 
person's  body,  you  cannot  help  seeing  whether  he 
has  marks."  Roger  "was  slim,  carried  his  head 
erect,  and  had  the  air  of  a  gentleman."  Witness 
was  positive  that  defendant  was  not  Roger.  He 
saw  him  just  before  his  departure  for  Valparaiso 
and  Roger  was  then  talking  French  as  usual. 

These  witnesses  all  testified  that  there  was  no 


64  TICHBORNE. 

peculiarity  of  "  twitching "  or  otherwise  about 
Roger's  eyebrows,  and  no  peculiarity  in  his  walk, 
save  only  M.  D'Aranza  thought  it  might  have  been 
a  very  little  odd  in  some  respect  which  he  did  not 
explain. 

Several  more  days  were  now  devoted  to  reading 
the  examination  and  cross-examination  of  the  de- 
fendant as  given  in  the  former  suit.  This  record 
covered  eleven  hundred  printed  pages,  and  the 
examination  of  witnesses  in  this  cause  was  not 
renewed  until  the  twenty-first  day  of  May. 

Then  the  Abb^  Toursel  was  called.  He  testified 
that  the  defendant  was  not  Roger.  He  had  con- 
fessed Roger,  but  acknowledged  that  he  had  seen 
him  only  once.  Roger  then  spoke  French  per- 
fectly. To  this  witness  the  poor  infatuated  mother 
expressed  her  conviction  that  the  claimant  was  her 
son ;  but  acknowledged  that  she  had  grown  weary 
of  the  life  which  she  led  with  him  at  Croydon,  of  the 
number  of  people  always  at  the  house,  the  turmoil 
and  expense  there.  She  had  arranged  therefore 
to  allow  to  her  son  a  fixed  weekly  stipend,  leaving 
him  to  go  his  own  separate  ways  and  do  with  it  as 
he  would.  The  unfortunate  lady  seemed  shaken 
and  depressed ;  she  was  very  worn  and  thin,  mere 
skin  and  bones,  so  that  witness  looked  after  her 
as  she  left  his  house,  fearing  she  might  fall.  Soon 
afterward  death  removed  her  from  the  strife. 

Donna  Clara  Novas  de  Hayley,  a  Spanish  lady 
from  Melipilla,  gave  much  interesting  testimony. 
She  was  wife  of  an  English  physician  resident 
there,   and    for    the    compensation  of   one   thou- 


TICHBORNE.  66 

sand  dollars  and  her  expenses^  had  come  across 
the  ocean  to  testify  in  this  cause.  She  knew  all 
the  people  of  that  town,  the  Castros  and  all  the 
rest,  very  well.  She  perfectly  remembered  the 
arrival  of  an  English  lad  there,  in  1847  or  a  little 
earlier ;  apparently  about  sixteen  years  old.  [Arthur 
Orton  was  then  about  this  age,  but  Tichborne  would 
have  been  at  least  five  years  older.]  He  gave  his 
name  as  Arthur  Orton,  son  of  George  Orton,  of 
London,  butcher  to  the  Queen.  He  was  dressed 
as  a  common  sailor  and  said  he  had  been  badly 
treated  by  his  captain.  He  mentioned  his  sisters, 
Mary  Anna  and  Margaret  Anne,  and  a  third  whose 
name  had  escaped  Donna  Clara's  memory. —  [Orton 
had  three  sisters,  Mary  Anne,  Margaret,  and  Eliza- 
beth.] —  This  young  stranger  had  been  taken  into 
their  house  by  her  husband,  partly  froqa  hospitality, 
partly  "  as  a  curiosity.  For  an  Englishman  was 
extremely  rare."  He  lived  in  her  house  some 
three  months.  He  did  nothing  but  amuse  himself, 
ride  horses  and  the  like.  The  people  there  lent 
him  their  horses,  and  occasionally  even  lent  him 
pocket-money.  He  picked  up  some  knowledge  of 
Spanish,  but  spoke  a  broken  jargon.  She  herself 
did  not  know  French,  but  thought  he  might  occa- 
sionally have  interpolated  a  French  word.  His 
hair  was  light,  with  a  reddish  tinge  (ruhio).  He 
showed  her  two  letters  on  his  arm,  about  midway 
between  the  wrist  and  elbow,  occupying  a  space 
as  large  perhaps  as  a  shilling,  and  which  he  told 
her  meant  Arthur  Orton.  She  admitted  that 
another  Englishman  with  a  larger  mark  on  his  arm 


66  TICHBORNE. 

had  been  at  Melipilla  some  two  or  three  years 
later,  a  man  twenty-five  or  thirty  years  old,  who 
came  with  an  American  party.  But  she  did  not 
confound  the  two.  Orton,  this  Avitness  said,  was  a 
Protestant,  though  once  he  had  told  her  that  he 
was  not  a  Christian  at  all.  While  at  Melipilla  he 
had  been  baptized  as  a  Catholic,  a  fact  which  made 
much  stir  in  the  village.  "  Fixing  her  eyes  with 
a  stem  look  "  upon  the  defendant  she  said  that  he 
was  her'  old  guest,  Arthur  Orton. 

Mrs.  Jury  from  Hobart  Town  was  next  called. 
She  was  now  a  widow ;  her  husband  had  been 
brother  to  the  husband  of  one  of  Orton's  sisters. 
She  knew  the  defendant  very  well,  and  he  was 
Arthur  Orton,  who  came  over  in  the  ship  "  Middle- 
ton"  in  1852.  She  was  perfectly  positive  about  it. 
She  sketched  his  life  at  Hobart  Town ;  he  was  a 
slaughter-man  there  at  first ;  then  he  opened  a 
butcher's  stall.  She  sent  him  geese  to  sell  for  her, 
and  also  she  lent  him  money ;  indeed  she  had  his 
note  of  hand  promising  to  pay  her  husband  X14, 
and  duly  signed  "  Arthur  Orton."  But  she  said, 
regarding  him  "steadfastly  and  indignantly,"  he 
had  never  paid  the  money.  His  attorney's  agent 
had  indeed  promised  that  she  should  get  her  money 
and  be  paid  handsomely ;  but  her  testimony  did 
not  suit ;  and  she  had  since  seen  neither  the  agent 
nor  the  money.  She  identified  several  letters 
written  by  him.  She  had  also  seen  the  tattooed 
initials,"  A.  0.,"onthearm,  when  she  met  defendant 
one  day  in  the  street ;  "  and  he  knows  it  too  !  "  she 
added,  looking  him  full  in  the  face.     Being  asked 


TICHBOKNE.  57 

if  she  had  the  slightest  doubt  as  to  defendant's 
identity,  she  said :  "  He  is  Arthur  Orton ;  the  man 
I  paid  my  money  to.  The  only  difference  is  that 
his  hair  is  a  little  darker.  He  has  the  twitching 
of  the  eyes  which  he  had  in  Hobart  Town."  She 
described  him  as  being  not  quite  so  stout  in  Hobart 
Town  ;  but  large-framed  ;  with  rather  small  hands 
and  feet ;  a  habit  of  twitching  his  eyebrows,  one 
more  than  the  other  ;  an  inability  to  look  a  person 
straight  in  the  face  ;  and  as  being  of  a  rather  lazy, 
round-shouldered,  and  generally  slouching  stjde. 
At  the  close  of  her  evidence,  before  leaving  the 
box,  she  paused  to  bestow  what  the  reporters  noted 
as  "  a  look  of  intense  bitterness  "  upon  her  dehn- 
quent  debtor,  the  defendant.  This  witness  ex- 
pected .£500.  She  did  not  think  the  government 
would  expect  the  mother  of  ten  children,  seven  of 
whom  were  unprovided  for,  to  take  such  a  journey 
without  compensation. 

Mr.  Hopwood  from  Victoria,  Australia,  was 
asked,  "  Have  you  seen  Arthur  Orton  in  court  ?  " 
Looking  at  defendant  he  replied :  "  Yes,  I  see  him 
now ;  that  is  he."  Witness  said  that  defendant 
was  precisely  like  Orton  except  in  being  rather 
stouter.  Witness  knew  him  first  as  Orton,  at 
Hobart  Town.  Afterward  meeting  him  inland  and 
addressing  him  as  Arthur,  he  was  silenced  by  a 
gesture  from  defendant.  They  then  adjourned  to 
a  public-house  to  take  a  drink  together,  and  defend- 
ant said  he  had  changed  his  name  to  Castro  on 
account  of  a  horse-scrape.  This  witness  was  to 
have  X250,  and  assented  to  the  suggestion  of  Dr. 


68  TICHBOKNE. 

Kenealy  that  he  was^  being  shabbily  treated  by  the 
government  in  not  getting  more. 

Miller,  an  attorney,  had  known  the  defendant  by 
the  name  of  Castro  in  Australia.  This  witness  had 
lived  for  some  years  at  Albury,  where  the  defend- 
ant had  said  that  he  had  left  Orton,  but  witness 
had  never  heard  of  such  a  person  there. 

Gibbes,  the  Australian  attorney,  was  next  called. 
He  said  that  Orton  at  some  time  between  July 
and  September,  1865,  had  applied  to  him  to  be  put 
through  insolvency,  bearing  then  the  name  of  Cas- 
tro, but  asked  whether  he  would  be  obliged  to  dis- 
close certain  property  to  which  he  was  entitled  in 
the  south  of  England.  Witness  told  him  that  he 
would  ;  that  the  penalty  for  a  concealment  in  the 
event  of  discovery  would  be  very  heavy.  This 
apparently  deterred  defendant  from  proceeding 
further  in  the  business.  This  witness  had  at  one 
time,  when  the  pretension  was  first  in  course  of 
preparation  in  Australia,  been  under  the  honest 
impression  that  defendant  was  the  genuine  Roger 
Tichborne.  He  saw  Cubitt's  advertisement  in  the 
"  Sydney  Morning  Herald,"  and  for  a  while  believed 
that  he  himself  had  perhaps  "  spotted  "  the  missing 
man ;  but  he  felt  no  absolute  certainty.  The  de- 
fendant had  shown  to  this  witness  the  famous  pipe 
with  the  initials  R.  C.  T. ;  but  upon  mterrogation 
had  acknowledged  that  he  had  not  preserved  it 
ever  since  the  shipwreck,  but  had  cut  the  letters  a 
year  or  fifteen  months  before.  It  was  this  pipe,  in 
connection  with  the  advertisement,  which  first 
aroused   Gibbes 's  suspicions   and  caused  him  to 


TICHBORNE.  69 

communicate  with  Cubitt.  Defendant  had  told 
witness  that  he  had  been  able  to  receive  but  an 
imperfect  education  on  account  of  his  being  afflicted 
with  Saint  Vitus's  dance  ;  that  a  Christian  brother 
had  gone  about  with  him  and  had  taught  him  from 
time  to  time  what  little  he  could.  Defendant 
further  told  this  witness  that  he  had  not  written 
to  his  mother  since  April  11,  1854,  and  felt  embar- 
rassed at  reopening  the  correspondence.  Witness 
suggested  that  he  himself  would  draught  a  letter 
for  him.  But  defendant  preferred  to  write  for  him- 
self, saying  that  his  mother  would  recognize  his 
style  and  his  handwriting,  which  had  not  changed. 
The  reason  why  the  foregoing  date  was  changed  in 
the  letter  (ante^  p.  19)  from  April  11  to  April  22, 
this  witness  could  not  remember,  though  he  was 
sure  that  defendant  did  at  the  time  give  some 
explanation  for  it. 

From  this  time  defendant  began  to  borrow  money 
in  small  sums  of  two  or  three  pounds  each  from  this 
witness.  One  of  his  applications  was  signed  R.  C. 
Tichborne,  and  the  first  syllable  —  Tich  —  was  on 
one  line,  and  home  was  on  the  next  lower  line. 
His  wife  being  delivered  of  an  infant  at  this  inter- 
esting juncture  in  his  fortunes,  he  wrote:  "I  am 
more  like  a  manic  than  a  B.  of  B.  K.  to  have  a 
child  born  in  such  a  hovel."  He  was  certainly  a 
rather  illiterate  and  ignorant  "  B.  of  B.  K." 

This  same  witness,  Gibbes,  wrote  the  will  in 
Australia.  It  was  written,  as  he  said,  only  in 
order   to   have   executors   appointed,  because  de- 


60  TICHBORNE. 

fendant  wanted  to  borrow  monej',  and  witness  ad- 
vised him  that  no  one  would  lend  him  money  unless 
some  provision  in  the  way  of  executors  should  be 
made  to  provide  for  the  contingency  of  his  death. 
But  there  was  no  idea  that  this  would  ever  be  really 
used  as  a  last  testament.  The  testator  did  not  con- 
template an  immediate  or  sudden  decease  and  was 
not  undertaking  to  provide  for  it. 

This  witness  had  received  a  letter  from  the 
Dowager  Lady  Tichborne,  in  which  she  said  that 
her  son  had  been  educated  at  Stonyhurst  and  had 
been  in  the  6th  regiment  of  Carabineers.  Pushing 
his  investigation  as  to  identity  witness  then  went 
to  Sydney,  found  the  defendant  at  that  place,  took 
him  before  a  respectable  solicitor  there  and  ques- 
tioned him.  Defendant  then  said  he  was  born  in 
Dorsetshire,  and  that  shortly  after  her  confinement 
his  mother  went  to  Cherbourg.  That  he  had  two 
sisters  born  in  Paris.  He  distinctly  denied  that  he 
was  ever  at  Stonyhurst;  said  he  was  in  the  66th 
regiment  of  Light  Dragoons ;  that  the  uniform  was 
blue  and  the  arms  were  a  sword  and  carbine ;  that 
he  was  a  private  ;  that  he  ran  away  and  joined  the 
dragoons  ;  that  he  was  forthwith  after  the  lapse  of 
only  thirteen  days  bought  off  by  his  father,  and  that 
he  was  thereafter  kept  under  careful  surveillance 
till  he  went  abroad ;  that  the  cause  of  his  joining 
the  army  was  a  card  case  at  Brighton,  in  which  he 
had  been  swindled  out  of  several  hundred  pounds. 
Afterward,  being  taxed  with  the  glaring  discrepan- 
cies between  many  of  his  statements  and  the  ac- 
counts given  in  his  mother's  letter,  he  exclaimed': 


TICHBOENE.  61 

"  1  never  was  an  officer !  and  by  God  I've  a  damned 
mind  never  to  go  near  her  when  I  go  home." 

In  the  will  the  defendant  had  given  his  mother's 
name  as  Harriet  Frances.  When  it  was  suggested 
to  liim  that  his  mother's  name  really  was  Henriette 
Felicity  he  only  said :  "  I've  a  notion  that  she  was 
called  Lady  Harriet."  Mr.  Hawkins  remarked 
that  she  was  not  called  "  Lady "  at  all  till  long 
after  Roger  left  home.  But  Henriette  Felicity 
seems  to  have  proved  quite  too  much  for  the 
butcher's  son  from  Wapping ;  he  could  not  get  the 
name  right  in  spite  of  the  French  education  which 
he  had  enjoyed  in  his  character  as  Roger  Tich- 
borne,  —  not  even  after  he  had  heard  it.  So  in  an 
affidavit  made  a  little  later  he  gave  her  yet  another 
alias,  an  approximation  to  accuracy,  —  "  Harriet 
Felicia." 

Defendant  had  thrown  out  hints  and  mysterious 
statements  to  this  witness  as  to  his  being  entitled 
to  property  in  England  and  that  his  family  had  a 
title,  and  that  his  name  was  assumed ;  and  all  this 
had  taken  place,  as  Gibbes  averred,  before  witness 
heard  of  Cubitt's  advertisement  and  of  the  missing 
Tichborne  heir.  Then  witness  by  way  of  testing 
defendant  and  for  his  own  information  spoke  a  few 
words  to  defendant  in  French,  and  was  answered 
by  him  in  the  same  language.  Witness  then  said : 
"  Shall  I  call  you  by  your  real  name  ?  "  and  defend- 
ant, apparently  much  annoyed,  cried  out,  "  Oh,  for 
God's  sake,  don't !  " 

Divers  small  incidents  which  led  witness  to  be- 
lieve in  defendant's  identity  with  the    lost   heir 


62  TICHBORNE. 

•were  :  his  recognizing  a  street  in  Paris  from  a  pho- 
tograph ;  his  being  visibly  affected  on  hearing  of 
his  younger  brother  Alfred's  death  ;  his  recognition 
of  his  mother's  handwriting ;  his  gentleman-like 
behavior  in  many  respects,  —  for  example,  said  the 
witness,  the  easy  manner  in  which  he  opened  the 
door  for  my  wife,  bowed- and  sat  down  again,  — in 
all  which  he  had  the  air  of  gentlemanly  breeding. 

Defendant  told  witness  that  the  reason  iie  was 
not  married  by  the  Catholic  ceremonial  at  first  was 
because  he  was  not  on  good  terms  with  the  church. 
This,  however,  turned  out  to  be  not  for  any  thing 
he  had  already  done,  but  because  he  meant  to  cut 
off  the  Tichborne  dole,  which  he  said  was  three 
shillings  in  the  pound  of  the  income.  In  fact,  the 
dole  was  only  a  few  loaves  of  bread. 

To  Mr.  Justice  Lush  the  witness  acknowledged 
that  defendant  might  conceivably  have  seen  the 
name  on  the  back  of  the  Parisian  photograph. 

This  witness  was  to  be  paid  .£600  for  his  trouble, 
—  not  for  his  testimony.  Indeed,  as  the  Chief 
Justice  remarked,  there  was  very  much  of  what  he 
had  said  that  was  quite  as  useful  to  the  defence  as 
it  was  to  the  prosecution,  which  had  called  him. 

Captain  Gates  was  next  called.  He  knew  the 
Captain  of  the  "  Bella,"  and  saw  him  a  great  deal  at 
Rio  in  1854.  The  witness  remembered  a  young 
English  gentleman,  slim  and  sunburned,  with  dark- 
brown  hair,  who  applied  to  be  taken  to  New  York 
on  the  *'  Bella."  This  person  had,  as  he  said,  come 
across  the  country  from  Valparaiso  to  Buenos 
Ayres.     He  was  not  then  in  funds  to  pay  his  pas- 


TICHBORNB.  68 

sage  money,  but  said  he  had  rich  friends,  and  the 
captain  finally  consented  to  take  him,  in  the  expec- 
tation that  that  matter  would  be  made  all  right  in 
time.  There  were  no  other  passengers.  The 
young  man  was  "in  trouble,"  and  though  he  was 
able  to  come  on  board  the  ship  openly  enough,  it 
was  necessary  to  smuggle  him  out  of  the  port.  This 
was  done  by  hiding  him  in  the  "  lazarette."  The 
inspecting  officer  was  duly  "  feed,"  and  did  not  find 
the  concealed  passenger.  The  young  Englishman 
was  perfectly  sober  when  he  came  on  board,  and 
supped  that  evening  with  this  witness  and  the  cap- 
tain of  the  "  Bella."  The  defendant,  it  should  be 
noted,  had  given  none  of  these  incidents  in  his  ac- 
count of  his  departure  from  Rio  ;  and,  on  the  con- 
trary, he  had  professed  to  remember  nothing 
distinctly  about  it ;  he  accounted  for  this  deficiency 
and  inaccuracy  of  his  memory,  because,  as  he  said, 
he  was  put  on  board  in  a  state  of  drunkenness. 
The  account  of  the  discovery  of  water  in  the  hold, 
and  of  the  gradual  settling  down  and  sinking  of  the 
ship  in  fair  weather,  giving  time  for  the  crew  to 
take  to  the  boats,  as  given  by  the  defendant,  was 
also  stated  by  this  witness  to  be  in  many  respects 
impossible.  The  theory  of  the  prosecution  was 
that  the  "  Bella  "  foundered  in  a  sudden  and  violent 
gale. 

Mary  Ann  Loder, .  the  quondam  inamorata  of 
Arthur  Orton,  was  called,  and,  with  a  "  faint  smile," 
admitted  that  defendant  was  the  person  who  used 
to  "  keep  company  "  with  her  under  that  name  ; 
the  same  in  voice  and  figure,  save  only  that  he  was 


64  TICHBOENE. 

now  a  little  stouter.  She  had  no  doubt :  if  she  had  the 
slightest,  defendant  should  have  the  benefit  of  it.  She 
identified  the  similitude  between  the  photographs 
purporting  to  come  from  Stephens,  and  to  be  like- 
nesses of  the  wife  and  children  of  Orton,  and  pho- 
tographs now  presented  to  her,  and  which  were 
likenesses  of  the  defendant's  wife  and  children.  She 
also  testified  to  the  twitching  of  the  eyebrows  of  her 
lover  ;  but  she  could  not  be  brought  by  any  urgency 
to  admit  that  her  old  admirer  was  a  "  raw-boned  " 
man.  She  said  his  hair  was  light,  and  being  shown 
a  lock  which  was  cut  from  the  head  of  the  defend- 
ant in  Chili,  she  said  it  was  like  that  of  Orton. 

Robert  Chew,  lighterman,  from  Wapping,  knew 
Orton  well,  and  identified  him  with  defendant  by 
face,  figure,  and  voice.  This  witness  had  held  his 
peace  until  defendant  told  the  story  of  the  seduC' 
tion  of  Miss  Doughty,  and  then  witness  volunteered 
his  information  in  order  "  to  vindicate  a  lady's 
honor."  "  Then  you  were  indignant  ?  "  queried  Dr. 
Kenealy.  "  I  were,"  replied  the  honest  lighterman, 
and  everybody  laughed  loudly. 

Mr.  Hawkes,  from  Hobart  Town,  knew  the 
butcher,  Arthur  Orton,  there.  To  the  question, 
whether  defendant  was  the  man  he  so  knew,  he 
replied :  "  He  is  not  the  man,  but  he  is  the  indi- 
vidual," which  somewhat  enigmatical  statement  he 
explained  by  saying  that  defendant  "  is  so  stout ; 
he  is  like  a  bullock  to  what  he  was  when  I  knew 
him." 

But  it  is  impossible  to  continue  to  give  even  the 
briefest  note  of  the  testimony  of  each  individual 


/ 


TICHBOENE.  65 

witness  ;  such  a  course  would  produce  a  book  which 
npt  the  most  patient  reader  could  be  trusted  to  pe- 
ruse. What  has  been  recited  may  serve  as  a  speci- 
men of  the  nature  of  the  testimony  and  of  the 
manner  in  which  the  witnesses  were  examined.  For 
the  future,  a  more  condensed  form  of  narrative 
must  be  adopted. 

A  great  number  of  witnesses,  chiefly  from  Wap- 
ping,  testified  to  their  belief  that  defendant  was 
their  old  acquaintance,  Arthur  Orton ;  some  of 
them  being  more  and  some  less  positive.  It  is 
needless  to  reproduce  their  evidence  categorically  ; 
but  it  should  be  noted  that  whereas  it  had  been 
made  a  point  by  the  Claimant  that  Arthur  Orton 
was  pock-marked,  and  had  his  ears  pierced  for  ear- 
rings, each  and  all  of  these  Wapping  witnesses 
said  that  he  was  not  pock-marked,  or  at  least  not 
noticeably  so,  not  so  much  so  that  they  had  ever 
observed  the  marks.  Some,  however,  said  that  he 
had  had  the  small-pox,  but  had  escaped  substan- 
tially unscarred  by  it.  Also  they  all  agreed  that 
they  had  never  seen  him  wear  ear-rings,  and  had 
never  seen  holes  for  rings  in  his  ears. 

In  the  description  of  the  person  of  Arthur  Or- 
ton given  by  himself  and  filed  at  the  shipping 
office,  that  individual  was  found  to  have  stated 
that  he  had  no  bodily  marks,  meaning,  of  course, 
none  that  were  noticeable  ;  whence  Mr.  Hawkins 
inferred  that  Orton  was  not  marked  with  the  small- 
pox, and  that  he  then  had  no  scar  on  his  face.  Of 
the  scar  we  shall  hear  more  hereafter,  when  wit- 
nesses for  the  defence  will  be  found  testifying  to 

5 


66  TICHBORNE. 

its  presence  on  Arthur  Orton's  countenance.  One 
of  these  above-mentioned  witnesses  from  Wapping 
was  a  "  scripture  reader."  He  had  knelt  down  that 
morning  and  prayed  God  to  give  him  grace  to  tell 
the  truth :  he  knelt  because  he  was  afraid  of  slip- 
ping, as  indeed  he  always  was.  He  had  made  the 
trial  a  subject  of  daily  prayer  from  its  beginning. 
He  owned  that  he  "  had  a  weakness  for  making  all 
things  in  his  life  a  matter  of  praj'er  for  God's 
directing  grace." 

There  was  testimony  also  from  several  of  these 
witnesses  that  Arthur  Orton  had  been  bitten  in  the 
arm  by  a  Shetland  pony,  and  that  the  wound  had 
left  a  scar ;  that  his  brother  dealt  in  Shetland 
ponies,  and  that  Arthur  took  a  span  of  them  with 
him  in  the  "  Middleton  "  to  Hobart  Town.  This 
coincided  with  the  testimony  of  other  Australian 
witnesses  for  the  Crown,  who  had  said  that  the 
defendant  had  had  a  pair  of  Shetland  ponies  with 
him  at  Hobart  Town. 

Proof  Avas  next  offered  sustaining  the  allegations 
of  Mr.  Hawkins  in  his  opening  speech  concerning 
the  names  of  the  crew  given  by  defendant,  and  the 
material  difference  between  the  size  of  the  only 
English  vessel  which  in  1854  was  called  the  "  Os- 
prey,"  and  the  size  ascribed  by  defendant  to  the 
vessel  which  rescued  him.  The  "Bella"  was  of 
five  hundred  tons  burden ;  defendant  said  he  was 
saved  by  a  vessel  larger  than  the  "  Bella."  But 
this  English  "  Osprey  "  was  only  sixty-six  tons. 
This  "  Osprey "  was  a  sloop,  and  the  vessel  de- 
scribed by  the  defendant  had  three  masts.     The 


TICHBOENE.  67 

records  showed  no  other  English  "  Osprey  "  than 
the  one  thus  described.  But,  as  the  Chief  Justice 
remarked,  this  left  the  whole  case  as  to  an  Ameri- 
can "  Osprey  "  untouched. 

Arthur  Hodson,  late  Colonial  Secretary  of 
Queensland,  made  the  passage  with  defendant, 
who  appeared  ignorant  and  fond  of  low  company. 
Defendant  frequently  told  this  witness  that  he  was 
saved  by  the  "  Osprey."  Witness  admitted  that  at 
Panama  the  defendant  spoke  a  patois  which  was 
intelhgible  to  the  people  of  that  country. 

Mrs.  Fairhead,  the  landlady  of  the  public-house 
at  Wapping  to  which  defendant  went  immediately 
after  his  return  to  England,  testified  to  the  interrog- 
atories which  he  put  to  her.  He  asked  after  the 
members  of  the  Orton  family,  calling  some  of 
them  by  name.  He  knew  of  his  mother's  death ; 
but  had  not  heard  of  his  father's,  and  seemed  quite 
affected  by  the  news.  He  also  inquired  about 
some  of  the  neighbors,  and  when  told  that  one 
John  Warwick,  of  whom  he  asked,  was  dead,  he 
said,  "Poor  John."  He  showed  witness  a  likeness 
of  Arthur  Orton 's  wife  and  children,  which  was 
identified  by  witness  with  likenesses  of  defendant's 
wife  and  children.  She  interrogated  him  quite 
earnestly  as  to  whether  he  was  not  an  Orton  him- 
self, being  much  struck  by  his  resemblance  to  the 
family  and  telling  him  so ;  but  he  resolutely 
denied  it. 

On  the  morning  of  Tuesday,  May  27,  the  Chief 
Justice  said  he  had  received  a  letter  asking  if  it 
would  be  contempt  of  Court  to  send  in  subscrip- 


68  TICHBOENE. 

tions  for  the  assistance  of  the  defendant  in  meeting 
his  expenses ;  in  reply,  he  would  say  that  mere 
subscriptions  could  not  be  contempt  so  long  as  no 
effort  was  made  to  prejudge  the  case.  Thereupon 
the  defendant  arose  and  asked  if  it  would  be  con- 
tempt of  Court  for  him  to  appear  at  the  theatres 
and  read  the  answers  returned  from  the  Home  De- 
partment to  certain  applications  which  he  had 
made  for  financial  aid  from  the  Treasury  in  con- 
ducting his  defence,  —  applications  which  his  fast 
friend  Mr.  Whalley  had  ventured  to  bring  up  in 
Parliament.  The  Court  said  that  such  a  proceed- 
ing would  not  be  proper,  and  though  urgently  im- 
portuned by  the  defendant  refused  to  say  more. 
That  which  was  "  not  proper  "  was  not  necessarily 
contempt.  So  the  defendant  after  this  appeared 
frequently  at  the  theatres,  especially  at  the  east 
end  of  London,  and  at  other  halls  and  public 
places,  and  there  read  the  reply  of  Mr.  Bruce,  the 
Home  Secretary,  to  his  requests  for  pecuniary  as- 
sistance in  securing  and  paying  his  witnesses  and 
otherwise.  Twice  his  proceedings  of  this  kind 
were  near  bringing  the  trial  to  a  very  abrupt  and 
unsatisfactory  termination;  for  twice  platforms 
gave  way  beneath  him,  and  the  bulky  Claimant, 
with  many  of  his  adherents,  was  precipitated 
several  feet  among  the  debris ;  but  he  emerged 
unhurt,  not  being  destined  thus  to  escape  from  the 
prosecution  of  the  Crown.  Later  in  the  season  he 
began  to  show  himself  at  pigeon-shootings,  and  to 
make  addresses  to  the  crowds  who  gathered  at  these 
merr3>makings.     But  at  the  same  time  some  of  his 


TICHBORNE.  69 

supporters  were  also  delivering  very  objectionable 
speeches,  letters  were  vexing  the  patience  of  the 
Court,  and  ill-advised  newspaper  articles  were 
bringing  editors  into  trouble  upon  charges  of  con- 
tempt. The  endurance  of  the  judges  was  by 
degrees  exhausted,  and  finally  the  Chief  Justice 
said  that  a  public  agitation  was  being  stirred  up, 
which  was  very  subversive  of  the  ends  of  justice. 
The  unusual  liberality  of  the  court  in  allowing  the 
defendant  his  full  and* free  personal  liberty  during 
the  trial  had  been  grossly  and  outrageously  abused. 
The  Court  could  no  longer  place  confidence  in 
the  defendant,  and  now  gave  him  fair  warning  that, 
if  from  this  moment  he  should  attend  any  other 
public  gatherings,  the  liberty  allowed  him  to  go  at 
large  on  bail  would  be  withdrawn,  and  he  would 
be  committed  to  gaol.  The  Court  was  resolved  to 
draw  the  line  "  tight  and  close,"  and  to  allow  no 
other  public  appearance  so  long  as  the  trial  should 
last. 

The  sentiments  of  the  mass  of  the  people  were 
often  and  strongly  manifested  in  favor  of  the  de- 
fendant. To  their  eyes  the  contest  was  that  of 
vulgarity,  insolence,  and  ignorance  against  wealth, 
culture,  and  aristocracy.  Naturally,  they  took  the 
side  of  the  part}^  whose  traits  bore  the  nearest  sim- 
ilitude to'  their  own.  Every  afternoon  at  half-past 
four  o'clock,  when  the  Court  adjourned,  the  ample 
space  of  Palace  Yard,  outside  Westminster  Hall, 
was  thronged  with  a  dense,  riotous  rabble,  who 
threw  up  their  caps  and  cheered  the  defendant  as 
he  was  driven  away  in  his  brougham.    A  large  force 


70  TICHBOKNE. 

of  policemen  was  detailed  to  keep  order ;  but  ev.en 
a  body  of  one  hundred  and  fifty  of  these  guardians 
were  unable  to  hold  the  cordon  unbroken,  and  at 
times  the  tumultuous  and  offensive  throng  over- 
came all  restraint,  filled  up  the  exit  from  the  Hall, 
and  hustled  and  crowded  the  dignified  judges  and 
barristers,  the  unfortunate  jurors  and  witnesses,  till 
extrication  became  a  serious  matter.  Towards  the 
close  of  the  trial,  Mr.  Hawkins  was  one  day  set 
upon  with  the  most  violent  animosity,  and  narrowly 
escaped  with  unbroken  bones,  or  indeed  even  with 
his  life. 

Nor  were  these'  outrages  of  the  mob  the  only 
annoyances  to  which  the  nerves  of  those  con- 
cerned in  this  extraordinary  trial  were  exposed. 
Anonymous  and  threatening  letters  were  sent,  ap- 
parently more  especially  to  those  who  were  sup- 
posed to  have  a  leaning  hostile  to  the  defendant. 
Yet  not  a  few  also  were  written  in  the  opposite  in- 
terest. For  example  Mr.  Gosford,  while  in  the 
witness-box,  received  such  a  communication,  begin- 
ning, "  Reflect  in  time."  Later,  one  of  the  jurors 
complained  that  he  had  been  notified  that  his  days 
were  numbered ;  and  that  such  notifications  had 
been  received  in  the  interest  both  of  the  Crown  and 
of  the  defendant ;  so  that  whichever  way  the  case 
went  he  was  to  be  immolated.  Mr.  Justice  Mellor 
remarked  that  the  juror  did  not  stand  alone  in  this 
danger;  and  the  Chief  Justice  heroically  hoped 
that  every  one  connected  with  the  case  would  fear- 
lessly discharge  his  duty. 

Some  epistles,  however,  of  a  more  amusing  char- 


TICHBORXE.  71 

acter  were  occasionally  received.  Thus  one  was 
sent  to  the  Chief  Justice,  in  which  he  was  gravely 
urged  to  have  the  defendant  mesmerized,  and  then 
questioned  while  in  that  condition !  Having  re- 
gard to  the  old  adage,  in  vino  Veritas,  it  might  have 
been  as  effectual,  and  doubtless  would  have  been 
more  agreeable  to  the  propensities  of  the  individ- 
ual, to  have  had  him  reduced  to  an  advanced  stage 
of  intoxication.  The  suggestion  was  not  acted 
upon. 

Early  in  June,  Mr.  Hawkins  began  to  introduce 
a  new  series  of  witnesses,  persons  who  had  known 
Roger  Tichborne,  aud  who  stated  their  belief  that 
defendant  was  not  he.  Many  pei-sons  who  had 
known  him  at  Stonyhurst  were  called.  Some  of  these 
gentlemen,  schoolmates  of  Roger,  were  subjected 
to  a  peculiar  cross-examination  by  Dr.  Kenealy. 
Thus  one  of  them  was  asked  to  define  a  scalene 
triangle  ;  to  give  the  title  of  the  second  book  of 
the  Iliad ;  and  to  state  the  contents  of  the  sixth 
book  of  the  ^neid.  The  witness  protested  that  he 
did  not  come  into  the  box  to  stand  an  examination 
in  Latui  and  Greek.  Kenealy  said  he  only  wished 
to  show  that  his  chent  retained  as  much  of  the 
learning  acquired  by  him  at  Stonyhurst  as  was  re- 
tained by  his  fellow-pupils  at  that  institution.  But 
the  Chief  Justice  said  that  "  nothing  approaching 
the  questions  he  was  asking  "  had  been  put  to  the 
defendant,  and  put  a  stop  to  such  interrogatories. 

With  a  view  in  some  measure  to  discrediting  the 
seduction  story,  the  prosecution  sought  to  show 
that  Roger's  training  had  been  such  as  to  leave 


72  TICHBORNE. 

him  singularly  pure-minded  and  unsophisticated 
in  such  matters.  Accordingly  the  Rev.  Christo- 
pher Fitzsimon,  chaplain  at  Stonyhurst  during 
Roger's  term  there,  was  summoned.  As  a  speci- 
men of  the  style  of  training  which  the  youths  re- 
ceived on  this  exemplary  foundation,  he  referred  to 
the  Christmas  plays  in  which  the  boys  there  were 
wont  to  act.  In  these,  female  characters  were 
never  allowed  to  appear :  all  such  were  changed  into 
male  characters,  or  else  were  ruthlessly  eradicated 
altogether.  Often  enough,  indeed,  this  singular 
process  ruined  the  drama.  How  a  love  plot  could 
be  carried  out  the  witness  was  unable  to  explain ; 
he  could  not  tell  how  Romeo  and  Juliet  could  be 
played  without  a  Juliet.  But  he  clung  to  his  state- 
ment. Mr.  Hawkins  then  came  to  his  aid,  and  said 
that  he  himself  had  a  number  of  the  school  play- 
bills, from  which  it  appeared  that  "  Box  and  Cox  " 
had  been  acted  without  a  Mrs.  Bouncer ;  "  Hamlet" 
without  an  Ophelia  ;  "  Macbeth  "  without  a  Lady- 
Macbeth  ;  and  the  "  Merchant  of  Venice  "  without 
a  Portia. 

Some  military  witnesses  were  called,  who  knew 
Roger,  and  said  defendant  was  not  he.  Most  of 
the  officers  of  Roger's  old  regiment  appeared  on 
behalf  of  tl\e  Crown.  Lord  St.  Lawrance,  in  con- 
versing with  defendant,  had  recalled  to  his  memory 
a  walk  from  Dublin  to  Howth,  describing  the  dis- 
tance as  two  miles.  Defendant  readily  said  he 
remembered  the  circumstance,  whereas,  said  his 
Lordship,  the  walk  in  fact  never  took  place,  and  the 
estimate  of  distance  was  ridiculously  wrong.     Dr. 


TICHBORNE.  73 

Kenealy  said  this  was  "  a  ti^ap."  "  You  may  call 
it  a  trap,"  said  the  Chief  Justice,  "  but  when  you 
suspect  a  man  of  falsehood  you  have  a  right  to  test 
him." 

Kenealy.  It  is  wrong  at  any  time  to  suggest  a 
He. 

Chief  Justice.  This  is  an  insulting  and  offensive 
observation  which  the  witness  does  not  deserve. 

Mr.  H.  Danby  Seymour,  an  old  acquaintance  of 
Roger,  said  that  in  his  first  interview  with  defendant, 
he  said, "  If  you  are  Roger  Tichborne  you  will  know 
this  gentleman."  "  My  Uncle  Nangle,  I  believe," 
replied  defendant.  Whereas  the  "gentleman" 
was  an  ex-servant  of  Sir  James  Tichborne,  Roger's 
father,  and  was  "  about  half  the  age "  of  Mr. 
Nangie,  who  had  passed  his  allotted  period  of  three- 
score years  and  ten. 

Viscount  de  Brimont  said  there  was  no  resem- 
blance between  Roger  and  defendant.  The  Dowa- 
ger Lady  Tichborne  had  said  to  him  in  Paris  that 
"  if  he  liked  to  please  her,"  he  would  see  the  Claim- 
ant and  "admit  him  to  be  her  son."  The  viscount 
declined,  and  remonstrated  with  her.  She  said, 
"  Oh,  very  well ;  Ave  can  get  some  one  else  who 
will." 

R.  B.  Mansfield,  barrister,  connected  with  the 
Tichbornes  by  marriage,  used  to  know  Roger.  He 
said,  "  There  is  only  one  person  in  the  world  more 
confident  than  I  am  that  this  man  is  not  Roijer 
Tichborne,  and  there  he  is ;  "  and  he  pointed  at 
defendant. 

Mrs.  Greenwood  said  she  had  been  disappointed 


74  TICHBORNE. 

to  find  it  so,  but  she  must  say  defendant  was  not 
Roger  Tichborne. 

Mr.  Gosford,  friend,  confidant,  executor,  trus- 
tee, and  the  custodian  of  the  sealed  packet,  was 
called.  He  gave  a  long  account  of  the  condition 
of  the  family  property  and  the  legal  arrange- 
ments concerning  the  estates.  It  would  require 
too  much  space  to  repeat  and  explain  these  com- 
plicated matters,  and  it  must  suffice  to  say  that  the 
facts  thus  narrated  gave  rise  to  strong  inferences 
that  defendant  was  not  Sir  Roger,  because  of  the 
ignorance  he  had  displayed  of  some  important  facts 
which  Roger  must  have  known,  and  in  truth  did 
know,  before  his  departure  for  South  America,  as 
was  shown  by  the  provisions  of  his  will. 

Respecting  the  packet,  Mr.  Gosford  said :  I 
recollect  having  a  long  conversation  with  him 
[Roger]  in  my  room  at  Tichborne,  —  I  think  on 
the  1st  of  January,  1852,  —  upon  the  subject  of 
his  attachment  for  his  cousin.  He  knew  there 
would  be  no  recognition  of  it  by  Lady  Doughty, 
Sir  Edward,  and  his  father,  and  he  determined  to 
give  expression  to  his  feelings  in  his  own  way.  He 
appeared  very  low  and  dispirited.  He  jumped  up, 
and  saying,  "  I'll  tell  you  what  I'll  do,"  he  went 
to  the  desk,  wrote  on  a  piece  of  paper,  showed  it 
to  me,  and  said,  "  If  I  marry  my  cousin,  that's 
what  I'll  do."  Every  syllable  of  it  has  been  in  my 
memory  ever  since.  I  told  him  that  such  vows 
should  not  be  lightly  made,  and  that  he  had  better 
think  it  over.  He  however  said  that  was  his  in- 
tention, folded  over  the  paper,  put  it  in  an  enve- 


TICHBOKNE.  76 

lope,  and  sealed  it  with  wax,  using  his  own  seal. 
He  then  wrote  on  the  outside :  "  Memorandum. 
Private  and  confidential,"  handed  it  to  me,  and 
asked  me  to  keep  it.  I  put  it  in  my  desk,  thinking 
no  harm  would  come  of  it,  and  kept  it  for  years, 
but  ultimately  destroyed  it.  Roger  never  gave  me 
any  other  document.  The  writing  was  this :  "  If  I 
marry  my  cousin  within  two  [or  three]  years"  — 
I  can't  recollect  which  —  "I  promise  to  build  a 
church  at  Tichborne  to  the  Blessed  Virgin." 
Lower  down  he  wrote:  "  I  also  intend  to  build  a 
house  at  Tichborne."  He  signed  it  Roger  Charles 
Tichborne,  Tichborne  Park. 

Witness  also  gave  the  contents  of  Roger's  will, 
•which  he  made  before  sailing  for  South  America, 
and  of  which  this  defendant  had  no  recollection. 

Dr.  Kenealy  tried  to  elicit  from  this  witness  that 
certain  references,  in  a  letter  from  Bishop  Brown 
to  Lady  Doughty,  referred  to  an  illicit  relationship 
existing  between  Roger  and  a  woman.  But  Mr. 
Gosford  indignantly  repudiated  the  insinuation, 
and  said  the  passage  related  to  Roger's  propensity 
for  drinking. 

In  the  cross-examination  it  appeared  that  this 
witness  had  received  a  check  for  eight  pounds 
from  a  member  of  the  Tichborne  family.  Kenealy, 
as  though  he  had  struck  an  important  trail,  began 
to  inquire  into  this  transaction.  Mr.  Gosford,  pro- 
testing against  being  obliged  to  give  the  names  of 
other  persons  in  his  reply,  simply  stated  that  he 
had  relieved  the  distress  of  an  unfortunate  "  person 
of  the  ne'er-do-weel  order,"  and  that  a  wealthy 


76  TICHBORNE. 

relative  had  subsequently  thought  proper  to  refund 
him  the  money.  This,  with  more  of  the  like  kind 
from  Dr.  Kenealy,  finally  provoked  the  Chief  Jus- 
tice and  Justice  Mellor  to  rebuke  the  counsel  for 
"  raking  up  people's  affairs  in  connection  with  a 
check,  which  evidently  had  nothing  to  do  with 
the  case ;  "  and  a  juror  chimed  in  with  a  request 
that  the  time  of  the  jury  might  be  considered. 
Mr.  Gosford,  however,  though  thus  unkindly  tor- 
mented, succeeded  in  accomplishing  a  feat  quite 
unique  in  the  course  of  this  trial :  he  actually  ex- 
torted from  Dr.  Kenealy  an  apology  for  an  insolent 
comment  uttered  by  that  gentleman. 

John  Etheridge,  an  old  man,  a  resident  in  the 
neighborhood  of  Tichborne,  who  remembered  Roger 
well,  met  defendant  near  the  park  in  1866.  De- 
fendant referred  to  the  rumors  of  Roger's  return, 
and  then  said,  "Do  you  think  I  am  he?"  Wit- 
ness replied,  with  more  of  vigor  than  of  compliment 
in  his  language,  "  No,  I'm  damned  if  you  are.  If 
you  are,  you  are  turned  from  a  race-horse  to  a 
wagon-horse."  Yet  the  defendant  had  had  the  au- 
dacity to  swear  that  Etheridge  had  recognized  him. 

On  Tuesday,  June  24,  Lady  Radcliffe,  that  was  Miss 
Kate  Doughty,  was  put  upon  the  stand.  She  gave 
a  long  and  circumstantial  account  of  the  love  affair 
between  her  cousin  Roger  and  herself,  and  of  the 
opposition  it  encountered  from  their  parents.  Her 
answers  were  frank,  natural,  and  went  direct  to 
the  point.  So  far  as  can  be  judged  from  the  printed 
report  of  her  evidence,  she  must  have  appeared  very 
well  indeed. 


TICHBORNE.  77 

The  Chief  Justice  then  interposed  to  read  a  let- 
ter, produced  at  the  last  trial,  written  by  Roger  to 
"  My  dearest  Kate,"  and  which  gave  an  affecting 
account  of  his  feelings  at  their  farewell  interview. 
Other  writings  of  Roger  were  also  read,  in  which 
he  avowed  an  ardent  attachment  for  his  "  own 
dearest  Kate,"  and  promised  to  devote  the  three 
years  which  he  proposed  to  spend  in  foreign  parts 
to  trying  to  become  all  she  wished.  She  was,  he 
said,  the  first  person  he  had  ever  loved  in  the  world. 

Lady  Radcliffe  said  that,  on  June  22,  1852,  at 
one  o'clock  in  the  afternoon,  Roger  gave  her  a 
letter,  saying,  "  This  is  a  promise  I  have  made  ; 
and  I  have  given  a  similar  one  to  Gosford."  They 
read  it  over  together.  Two  hours  later,  at  three 
o'clock  that  afternoon,  Roger  left  Tichborne,  and 
she  had  never  seen  him  since.  The  contents  of  the 
paper  have  already  been  set  forth  in  Mr.  Hawkins's 
opening :  it  was  a  promise  to  build  a  chapel  or 
church  if  he  should  marry  his  cousin. 

Mr.  Haxohins.  Was  there  any  familiarity  between  you 
and  Roger  other  than  that  you  have  told  us  of  to-day  ? 

Lady  Radcliffe  (emphatically).    No,  never  —  never! 

3Ir.  Hawkins.  Is  the  defendant's  statement  at  the  last 
trial,  that  Roger  seduced  his  cousin,  perfectly  false  ? 

Lady  Radcliffe.  Utterly  false  —  utterly  false  !  Roger 
would  never  have  thought  of  such  a  thing. 

The  Claimant's  narration  of  Roger's  meeting  mth 
his  cousin  alone  one  day  in  Tichborne  village,  in 
November,  1852,  dismounting  from  his  horse  and 
talking  with  her  "  about  her  condition,"  was  re- 


78  TICHBOENE. 

peated,  and  the  witness  was  asked,  "  Is  there  one 
syllable  of  truth  in  these  details?" 

Lady  Radcliffe  (in  firm  audible  tones) .  Certainly  not ! 
not  one  single  word!  And  God  knows  I  am  speaking 
the  truth. 

Dr.  Kenealy  asked,  on  cross-examination,  whether 
the  witness  had  not,  on  more  than  one  occasion, 
been  seen  alone  in  her  cousin's  company,  at  vari- 
ous spots  which  he  named,  near  the  Park.  She  re- 
plied that  she  had  never  walked  alone  with  Roger, 
except  in  her  father's  grounds :  she  "  should  never 
have  dreamed  of  doing  such  a  thing!"  She  was 
next  asked  if  Dr.  Lipscombe  did  not  prescribe  for 
her  between  August  19  and  September  6, 1853.  She 
replied  that  he  did,  and  that  she  took  the  medicine. 

Mr.  Hawkins  resumed  the  direct  examination :  — 

It  is  not  suggested  that  any  act  of  impropriety  ever  took 
place  between  you  and  Roger.  But  I  ask  you,  as  a  matter 
of  fact,  was  there  ever  any  such  act  ? 

Lady  Radcliffe.  Never  !  never !  never !  in  the  whole 
course  of  my  life,  I  solemnly  protest. 

Mr.  Hawkins.  Or  had  you,  before  you  were  cross-exam- 
ined this  morning,  ever  the  least  suggestion  that  any  ques- 
tions would  be  put  to  you  with  reference  to  Dr.  Lipscombe's 
treatment  ? 

Lady  Radcliffe.  Never.  Dr.  Lipscombe  was  the  family 
doctor,  and  he  attended  me  with  the  full  knowledge  of  my 
mother. 

Sir  Percival  Radcliffe,  Mrs.  Nangle  and  her 
daughter  (Roger's  aunt  and  cousin),  and  a  large 
number  of  other  witnesses,  mostly  persons  of  rank 


TICHBORNE.  79 

and  distinction,  were  now  examined.  They  had 
all  known  Roger  well,  and  all  testified  that  defend- 
ant was  not  he.  Some  of  them  bore  witness  to  the 
existence  of  the  tattoo  marks  on  Roger's  arm. 

Defendant  had  testified  that  while  quartered  with 
his  regiment  at  Canterbury,  he  had  paid  his  atten- 
tions to  a  Miss  Mary  Hales,  resident  there.  Miss 
Hales  was  called  and  said  that,  so  far  from  having 
received  the  addresses  of  Roger  Tichborne,  she  did 
not  even  know  him. 

A  gamekeeper  on  the  Tichborne  estates,  having 
testified  that  defendant  was  not  Roger  Tichborne, 
was  asked  by  Dr.  Kenealy  whether  he  was  to  be 
paid  any  thing  for  his  evidence.  He  replied  that 
he  was  not.  The  doctor  then  read  a  letter  in 
which  this  witness  stated  that  the  solicitor  for  the 
family  "  will  pay  me  what  is  due."  The  witness 
said  this  referred  to  some  arrears  of  wages.  The 
Chief  Justice  strongly  denounced  such  "unwar- 
rantable imputations"  from  the  counsel.  Kenealy 
retorted  that  he  should  discharge  his  duty  fearlessly 
towards  his  client,  and  would  not  be  put  down  by 
his  Lordship.  Cockburn  said  he  would  not  tolerate 
such  conduct  as  that  of  which  Kenealy  was  guilty, 
and  finally  peremptorily  ordered  the  doctor  to  pro- 
ceed with  his  examination. 

Mr.  Hawkins  then  called  the  brother-in-law  of 
Orton,  the  physician  of  the  Orton  family,  and 
numerous  other  acquamtances  of  Arthur,  who  all 
testified  that  in  their  several  opinions  the  defendant 
was  Arthur  Orton.  With  this,  the  counsel  for  the 
prosecution  said  that  they  rested  their  case. 


80  TICHBORNE. 

The  case  for  the  prosecution  being  closed,  Dr. 
Kenealy,  on  the  twenty-second  day  of  July,  arose 
to  open  the  case  for  the  defendant.  He  obtained 
leave  to  remove  his  wig  on  account  of  the  excessive 
heat;  and  forthwith  plunged  into  an  harangue 
which  was  in  many  respects  so  extraordinary  as  to 
show  that  this  precaution  for  keeping  his  head  cool 
had  been  neither  superfluous  nor  altogether  effec- 
tual. As  he  appears  in  this  cause,  he  is  indeed  a 
most  singular  person.  He  will  remind  people  upon 
this  side  of  the  water  in  many  ways  of  the  notori- 
ous John  Graham,  of  the  New  York  bar ;  though 
the  doctor  is  a  man  of  much  greater  intellectual 
calibre,  more  extensive  professional  knowledge  and 
much  more  manliness  than  can  be  attributed  to  the 
American  advocate.  Dr.  Kenealy  possesses  an  un- 
rivalled audacity  and  almost  an  unrivalled  insolence 
in  his  manners  towards  the  bench.  The  acerbity 
of  the  temper  of  the  Lord  Chief  Justice  Cockburn 
is  well  known  on  both  sides  of  the  Atlantic.  But 
it  was  reserved  for  Dr.  Kenealy  in  this  trial  to 
bring  it  forth  in  its  most  forcible  exhibitions. 
Nothing  so  spirited  was  elicited  from  his  Lordship, 
even  when  he  sat  as  an  arbitrator  at  Geneva,  as 
were  some  of  his  sallies  in  this  case.  Though  it 
must  be  admitted  that  he  was  generally  in  the 
right,  yet  he  maintained  the  right  with  an  energy 
little  short  of  judicial  ferocity.  But  he  met  a  per- 
fectly fearless  opponent.  Many  were  the  battles- 
royal  between  these  two  redoubted  champions;  nor 
could  the  judge  ever  succeed  in  securing  the  best 
of  the  conflicts,  save  by  falling  back  upon  his  offi- 


Dr.  E.  V.  KENEALY,  Q.C. 
(Leading  Counsel  for  the  Defence.) 


TICHBORNB.  81 

eial  prerogatives.  Wlien  he  ordered,  and  intimated 
that  in  case  of  disobedience  the  learned  counsel 
might  find  himself  incontinently  transferred  from 
the  court-room  to  be  shut  up  in  a  cell,  there  was 
nothing  left  to  Keneal}'  except  submission :  valor 
was  useless,  and  silence  was  a  necessity.  The 
doctor's  position  was  rendered  the  more  embarrass- 
ing because  he  Avas  enveloped  in  an  unmistakably 
hostile  atmosphere ;  in  nearly  every  instance  the 
Chief  Justice  was  backed  by  his  comrades,  Justices 
Lush  and  Mellor,  and  sometimes  even  the  barristers 
present  seem  to  have  shown  by  their  manner  or 
other  indubitable  signs  that  they  were  of  the 
same  mind.  But  the  hostility  was  well  merited. 
Seldom  can  the  method  of  conducting  a  cause 
have  been  more  pertinaciously  offensive  or  more 
intentionally  subversive  of  the  real  ends  of  jus- 
tice, even  in  the  city  of  New  York,  than  was 
the  course  deliberately  and  systematically  pursued 
by  Kenealy. 

There  was  much  elaboration  and  no  small  dis- 
play of  real  ability  in  the  way  in  which  he  "  got 
up  "  his  side  of  the  case.  Yet  it  was  not  the  profes- 
sional auditory  alone  that  he  arrayed  against  him- 
self by  his  want  of  tact  in  some  particulars.  He 
browbeat  witnesses,  and  threw  out  so  lavishly  his 
insinuations  of  falsehood,  fraud  and  corruption,  that 
the  jurors  ere  long  became  as  much  disgusted  as 
the  bench  and  the  bar.  Moreover,  he  was  too  dif- 
fusive ;  he  dwelt  upon  his  points  too  long ;  he 
wandered  too  much  into  collateral  and  illustrative 
matter,  and  wearied  his  hearers,  who  begrudged  the 

6 


82  TICHBOE.NE. 

long  time  which  this  trial  obliged  them  to  take  from 
the  prosecution  of  their  regular  avocations  and  busi- 
ness. Often  they  spurred  him  on,  and  expressed 
their  impatience ;  he  always  promised  that  he 
would  take  the  hint,  and  would  hasten  as  much  as 
possible  ;  but  he  never  seemed  to  his  auditors  really 
to  do  so. 

It  is  needless  to  delay  the  narrative  here  for  the 
purpose  of  giving  any  thorough  abstract  of  his 
opening  address,  which  consumed  twenty-one  days 
in  the  delivery.  _To  set  forth  its  contents,  even  by 
the  briefest  intimations,  would  only  involve  much 
tiresome  repetition,  Avithout  compensating  informa- 
tion. The  story  of  the  cause  has  been  already  suf- 
ficiently developed  to  render  the  testimony  of  his 
witnesses  intelligible  ;  and  his  closing  speech,  which 
was  his  great  effort  and  was  indeed  a  most  inter- 
esting composition,  will  deserve  all  the  space  which 
we  can  allot  to  his  oratory.  The  basis  upon  which 
he  founded  his  defence,  however,  deserves  to  be 
stated.  It  shows  the  daring  and  originality  of  the. 
man.  It  may  be  regarded  as  the  onl}^  course  which 
was  open  to  him  ;  nevertheless,  few  men  would 
have  entered  upon  it  with  such  bold,  uncompro- 
mising, confident  vigor  as  he  displayed.  The  igno- 
rance, the  degraded  and  vicious  career,  and  the 
singular  and  undeniable  lapses  of  memory,  or,  to 
speak  plainly,  the  proven  falsehoods  on  the  part  of 
his  client,  could  not  be  gainsaid  or  disproved  ;  they 
were  facts  inexpugnable  by  evidence  or  denial,  and 
as  facts  they  must  be  met  and  accounted  for  in  some 
manner.     He  boldly  resolved  to  sacrifice  the  intel- 


TICHBOENE.  88 

lect  and  morals,  the  native  disposition,  and  the  ac- 
quired habits  of  Roger  Tichborne,  and  of  his  own 
client,  one  or  both,  to  this  emergency.  Nor  did  he 
make  any  imperfect  work  in  this  respect.  Far  from 
it ;  he  mercilessly  slaughtered  the  good  name 
and  reputation  which  thus  stood  in  his  way.  He 
said  that  Roger  was  by  nature  low,  depraved,  and 
vicious.  At  the  time  of  his  going  on  board  the 
"  Bella,"  he  "  had  fallen  far  beneath  every  attribute 
of  honor  and  decency  and  independence  ;  "  he  said 
to  himself,  "  I  am  an  outcast  and  a  vagabond,  and 
I  will  lead  the  life  of  an  outcast  and  a  vagabond  ;  " 
and  what  he  thought  himself  to  be,  that  in  very  truth 
he  was.  "  He  fled  from  that  society  of  which  he 
felt,  and  rightly  felt,  that  he  was  unworthy,  and 
to  which  he  knew  himself  to  be  a  disgrace."  He 
landed  in  Australia  "  like  an  Arab  on  the  face  of  the 
earth,  — like  a  second  Cain."  Thus  depicting  the 
unfortunate  man  whom  he  claimed  for  his  client  in 
the  most  revolting  colors,  the  doctor  said  that  it 
was  a  gross  and  absurd  humbug  for  the  Crown  to 
instil  an  opposite  theory,  and  to  seek  to  represent 
Roger  as  having  been  a  model  of  chastity  and  purity, 
a  lad  who  could  never  conceivably  have  harbored 
an  impure  thought  towards  his  cousin,  and  whose 
name  should  be  handed  down  to  future  ages  "  en- 
shrined in  crystal."  The  real  Roger  was  a  student 
of  obscene  French  literature,  and  even  had  the  in- 
decency to  seek  to  make  his  aunt  Lady  Doughty 
the  companion  of  his  studies.  It  was  this  awful 
self-consciousness,  the  sense  of  his  own  extreme 
and  hopeless  degradation,  that  made  Roger  deter- 


84  TICHBOKNE. 

mine  not  to  make  known  his  escape  from  death, 
and  not  to  return  to  take  his  place  and  assert  his 
heirship.  His  younger  brother,  Alfred,  he  thought, 
would  more  worthily  fill  the  position  and  discharge 
its  duties.  It  was  only  because  Alfred  had  died 
untimely  that  he  altered  his  resolution,  and  came 
home  to  claim  and  take  his  own. 

The  most  dark  and  abominable  practices  were 
hinted  at  by  the  learned  doctor,  in  mysterious  lan- 
guage, as  having  been  in  vogue  to  corrupt  the 
morals  and  destroy  the  minds  of  the  youths  at  Stony- 
hurst  ;  and  though  the  Chief  Justice  interrupted 
him  to  say  that  no  manner  of  foundation  had  been 
laid  for  such  "  fearful  and  appalling  accusations," 
he  yet  insisted  upon  reiterating  them. 

As  for  his  client's  narrative,  he  acknowledged 
that  it  was  in  many  parts  "  absurd  "  and  "  ridicu- 
lous ;  "  though  the  word  false  he  carefully  refrained 
from  uttering.  Never  quite  of  average  ability, 
said  the  doctor,  the  accidents  which  he  has  suffered 
cannot  fail  to  have  affected  his  head.  Having  due 
regard  to  his  physical  condition,  and  to  what  he 
has  passed  through,  "  I  do  not  think  he  should  be 
bound  down  to  every  absurd  thing  he  has  said  or 
written.  He  must  he  tried  on  great  and  broad  prin- 
ciples" His  mind  has  been  "  sapped  by  dissipation 
and  by  numerous  falls  and  tumbles  ;  "  and  though 
it  may  be  going  too  far  to  say  that  he  is  under  de- 
lusions, yet  his  statements  are  not  to  be  relied  upon. 
As  instances  of  these  "  absurdities  "  on  the  part  of 
the  defendant.  Dr.  Kenealy  mentioned  the  famous 
account  of  the  shipwreck,  which,  he  said,  was  too 


TICHBORNE.  86 

"ridiculous  ''  ever  to  have  been  given  by  a  sailor, 
as  Arthur  Ortori  was.  Being  pressed,  however,  by. 
Chief  Justice  Cockburn  and  Mr.  Justice  Lush  to 
say  whether  the  defendant's  account  of  the  ship- 
wreck was  to  be  abandoned  as  incorrect,  the  learned 
counsel  would  only  repeat  that  it  was  absurd  and 
ridiculous,  and  that  his  client  was  not  responsible 
for  his  statements. 

The  same  explanation  was  given  of  the  defend- 
ant's averments  made  in  Australia,  that  he  was 
never  at  school  at  Stonyhurst,  and  was  never  an 
officer  in  the  army,  but  that  he  had  been  a  private 
in  the  Sixty-sixth  Blues.  All  this  showed  a  tem- 
porary aberration  of  common  sense,  and  "  folly 
could  no  farther  go."  A  juryman  hereupon  asked : 
"  Are  you  trying  to  induce  us  to  find  a  verdict 
which  would  have  the  effect  of  sending  the  defend- 
ant to  Broadmoor  ?  "  [a  lunatic  asylum] ,  to  which 
the  doctor  replied :  "  No,  sir  ;  but,  as  I  said  to  Mr. 
Justice  Lush  when  he  asked  whether  I  called  these 
things  '  delusions,'  I  say  they  are  absurdities.'''' 

The  will  made  by  his  client  at  Wagga-Wagga 
was  admitted  by  the  doctor  to  contain  much  that 
was  unfounded  in  fact,  and  much  "  pure  and  per- 
fect nonsense  ;  "  but  he  explained  that  it  was  only 
designed  to  be  used  as  a  pretext  for  borrowing 
money,  and  such  ruses  were  of  common  occurrence 
among  the  young  members  of  the  higher  classes  in 
their  transactions  with  money-lenders.  The  Chief 
Justice  interfered  in  behalf  of  the  youthful  aristoc- 
racy of  England,  protesting  against  so  sweeping  an 
imputation  against  them,  which  amounted  substan- 


86  TICHBORNE. 

tially  to  charging  them  with  swindling  or  obtain- 
ing money  under  false  pretences.  The  introduction 
into  the  will  of  the  name  of  John  Jarvis,  of  Brid- 
port,  a  friend  of  the  Ortons,  arose*  from  the  fact 
that  the  defendant  had  associated  much  with 
Arthur  Orton,  and  that,  having  the  weaker  mind 
of  the  two,  and  hearing  Orton  talk  much  of  his  past 
life  and  acquaintances,  defendant  got  his  own  mind 
gradually  but  thoroughly  saturated  with  these  mat- 
ters and  things,  and  poured  them  out  in  his  char- 
acteristic reckless  way  when  dictating  his  will. 
Altogether,  the  will  belonged  to  the  class  of  "  ab- 
surdities "  to  which  no  attention  should  be  paid. 
The  real  issue  was  not  whether  the  defendant  in 
that  will  uttered  a  parcel  of  ridiculous  stories  and 
fables,  but  whether  or  not  he  was  Roger  Tichborne. 
The  doctor  enumerated  various  other  acts  of  his 
client  "  bordering  upon  insanity,"  such  as  his  visit 
to  Wapping  immediately  after  his  arrival,  made  for 
the  purpose  of  inquiring  about  the  Ortons,  and 
his  sending  to  Orton's  sister  the  photographs  of 
his  own  wife  and  children  as  the  likenesses  of  the 
wife  and  children  of  Arthur.  This  Wapping  ex- 
ploit the  counsel  afterwards  spoke  of  as  "  mania- 
cal; "  and  it  certainly  deserved  the  epithet.  The 
defendant  was  a  man  of  a  very  "  impressionable 
mind,"  and  it  was  in  fact  the  "  powerful  influence 
of  Arthur  Orton  over  his  mind  which  so  imbued 
him  with  every  thing  connected  with  that  person 
that  he  was  led  to  do  all  these  silly  things,  such 
as  no  clever  impostor  would  ever  have  dreamed 
of.''     Another  statement  of  his  client's,  such   as 


TICHBORNE.  87 

could  have  been  expected  to  fall  from  "  no  sane 
man,"  was,  that  he  had  "  danced  the  can-can  in 
1847  before  a  lot  of  ladies  and  gentlemen  in  the 
library  at  Burton  Constable."  The  Chief  Justice 
asked  if  he  meant  that  this  assertion  of  his  client's 
was  to  be  taken  as  untrue  ;  but  again  he  evaded  the 
unwelcome  phrase  and  said  only  that  such  things  were 
"  too  absurd  to  require  to  be  seriously  considered." 
False  statements  made  by  the  defendant,  if  arising 
from  no  other  motive  than  to  avoid  the  difficulties 
of  examination,  were  alleged  by  the  learned  counsel 
not  to  constitute  perjuries  punishable  by  law.  But 
the  Court  interposed  and,  "  as  the  Court  of  Queen's 
Bench,  sitting  here  in  hanco^^''  ruled  that  an  answer 
on  oath  made  from  any  indirect  motive,  to  avoid 
giving  a  direct  answer,  if  known  to  the  answerer 
to  be  false,  is  undoubtedly  perjury. 

Nor  was  it  contusions,  drunkenness,  debauchery, 
and  general  vileness  of  habits,  which  alone  in  the 
opinion  of  his  counsel  had  corroded  the  morals  and 
enfeebled  the  intellect  of  the  defendant.  His  obes- 
ity, said  Dr.  Kenealy,  with  consummate  gravity, 
was  strongly  against  him.  "  Dulness  and  fatness 
always  go  together."  This  announcement,  so  sol- 
emnly put  forth,  was  encountered  with  equal 
solemnity  and  some  degree  of  feeling.  The  Chief 
Justice,  though  certainly  his  own  "  withers  were 
unwrung,"  for  he  is  a  spare  man,  said  the  proposi- 
tion was  "  new  an4  startling,"  that  it  was  a  mere 
popular  prejudice  that  as  a  man  waxes  in  flesh  he 
wanes  in  intelligence.  Dr.  Kenealy  appealed  to 
the  records  of  obesity  as  sustaining  his  assertion. 


88  TICHBORNE. 

The  foreman  of  the  jury  suggested  that  there  were 
two  or  three  fat  men  in  the  panel ;  but  the  doctor 
poHtely  averred  his  inability  to  see  them.  The 
judges  too,  he  said,  were  all  thin.  The  Chief 
Justice  said  it  was  attributable  to  their  being 
worked  so  hard,  and  Mr.  Justice  Lush  said  this 
trial  was  likely  to  make  them  thin  enough.  "  You 
will  grow  the  more  intellectual,"  replied  Kenealy. 
But  the  weighty  discussion  was  cut  short  by  the 
entrance  of  a  barrister  of  really  vast  dimensions, 
who  appeared  painfully  forcing  his  way  among  the 
crowd  of  his  learned  brethren;  every  one  laughed 
at  him  loud  and  long,  and  not  until  all  had  been 
satiated  with  merriment  did  Dr.  Kenealy  continue 
his  address. 

The  marriage  in  Australia  under  the  assumed 
name  of  Castro  was  additional  proof  that  the  de- 
fendant was  Tichborne  rather  than  Orton.  For 
Orton  had  no  reason  to  take  an  alias ;  but  Tich- 
borne had.  This  heir  to  a  titled  name  and  to 
great  estates  "  had  entered  into  a  menial  employ- 
ment, and  now  had  before  him  the  vista  of  a  free 
independent  untrammelled  existence,  like  a  wild 
animal  in  sylvan  shades ; "  of  course  he  wished  to 
conceal  his  true  name.  This  fluent  rhetoric  was 
unkindly  interrupted  by  the  Chief  Justice,  who 
continued  to  torment  the  poor  doctor  more  merci- 
lessly than  the  gadfly  pursued  Ino,  and  who  now 
recalled  to  his  memory  that  his  own  client  had 
himself  said  that  Orton  had  in  fact  changed  his 
name  ;  and  Mr.  Hawkins  added  that  the  cause 
assigned  for  the  taking  an  alias  was  that  Orton 


TICHBOENE.  89 

had  done  something  not  in  conformity  with  the 
law.  Again  the  doctor  jQung  down  the  threadbare 
sacrifice  of  the  defendant's  veracity  and  acknowl- 
edged that  he  should  be  sorry  indeed  to  have  all 
that  his  client  had  said  taken  "for  gospel." 

Speaking  of  the  famous  cross-examination  of  the 
Claimant  conducted  by  Sir  John  Duke  Coleridge 
in  the  ejectment  cause,  Dr.  Kenealy  said  that  his 
client  was  at  that  time  suffering  from  mental  alien- 
ation which  had  been  caused  by  his  deep  drinking. 
But  the  Chief  Justice  said  that  he  had  been  struck 
over  and  over  again  by  the  intellectual  capacity 
exhibited  by  the  defendant  while  under  cross- 
examination  ;  and  that  in  his  opinion  the  defendant 
had  then  beaten  Sir  John  Coleridge.  Dr.  Kenealy 
said  that  Sir  John  had  indeed  said  so,  but  that 
that  eminent  advocate  had  surrendered  his  laurels 
too  readily.  Though  if  the  learned  gentleman  was 
just  now,  when  it  suited  his  purpose,  inclined  to 
be  thus  civil  and  complimentary  to  Sir  John  Cole- 
ridge he  was  by  no  means  always  in  the  same 
amiable  humor  towards  others.  The  language  of 
compliment  fell  seldom  from  his  lips.  One  day  he 
spoke  of  Chatillon  as  a  "valet." 

Chief  Justice.    Sir,  that  is  not  a  proper  observation. 

Kenealy.  It  is  a  proper  observation.  I  have  a  duty  to 
perform. 

Justice  Mellor.  Your  duty  is  to  be  performed  undoubt- 
edly ;  but  still  under  the  obligations  which  a  gentleman 
knows  how  to  observe. 

Kenealy.  My  Lord,  I  understand  my  duty,  and  wUl  not 
be  taught  it  by  your  Lordship. 


90  TICHBOKNE. 

CJiief  Justice.  And  I  will  not  allow  you  to  address  lan- 
guage like  that  to  a  member  of  the  bench. 

At  another  time  Dr.  Kenealy  said  of  the  tattoo 
marks  that  they  had  not  been  known  or  thought 
of  at  first ;  that  evidently  Sir  John  Coleridge  had 
not  been  instructed  about  them  when  he  cross- 
examined  the  defendant. 

Mr.  Hawkins  (interrupting).  Dr.  Lipscombe,  one  of  the 
plaintiff's  witnesses  at  the  last  trial,  said  that  he  once  saw 
tattoo  marks  on  the  plaintiff's  arm,  and  that  [the  then] 
plaintiff  had  told  him  they  were  made  by  a  school-fellow. 
It  is  false  to  say  that  Sir  John  Coleridge  was  not  in- 
structed as  to  the  tattoo  marks,  for  I  know  that  he  was. 

Dr.  Kenealy  bade  the  jury  pay  no  attention  to  that 
disgraceful  statement. 

Chief  Justice  (to  Dr.  Kenealy).  I  cannot  allow  such  lan- 
guage. 

Kenealy.  Mr.  Hawkins  had  no  right  to  make  such  a 
statement  to  the  jury.  He  ought  to  withdraw  the  expres- 
sion. 

Chief  Justice.  You  have  yourself  used  quite  as  strong 
language.     Let  the  matter  drop. 

Kenealy.  If  you  look  with  indulgence  on  language  of 
that  kind,  1  cannot  do  so  —  I  reiterate. 

It  is  noteworthy  that  in  neither  of  these  fracas, 
nor  indeed  in  the  majority  of  the  many  similar  ones 
which  were  of  frequent  occurrence,  was  there  any 
apology  or  any  kind  of  submission  or  acknowledg- 
ment of  error  on  the  part  of  Dr.  Kenealy  towards 
the  judges.  The  battles  were  usually  drawn. 
The  doctor  was  as  stubborn  as  the  Chief  Justice, 


TICHBOKNE.  91 

more  audacious  and  not  less  insolent.  Moreover, 
he  handled  the  facts  and  the  evidence  in  the  case 
as  if  they  had  been  potter's  clay  to  be  moulded  to 
his  fancy. 

This  last  passing  of  the  "  lie  indirect "  rankled 
in  the  memory  of  the  parties  longer  than  such 
encounters  are  wont  to  linger  in  the  professional 
recollection.  Several  days  afterward, .  when  Dr. 
Kenealy  had  began  to  examine  his  witnesses,  he 
became  involved  in  one  of  his  numerous  alterca- 
tions with  Mr.  Hawkins.  Both  gentlemen  waxed 
somewhat  warm.  The  Chief  Justice  interposed, 
and,  of  course,  the  lash  of  his  rebuke  fell  upon  the 
devoted  shoulders  of  the  defendant's  counsel,  who 
surely  had  need  to  be  thick-skinned  as  well  as 
learned  in  the  law. 

Chief  Justice  (to  Kenealy).  Don't  show  such  temper! 
I  don't  know  what  has  happened  to  you  this  morning.  You 
seem  desirous  of  offending  somebody. 

Kenealy.    I  hope  I  have  not  offended  your  Lordship. 

Chief  Justice.  But  there  is  a  tone  of  asperity  in  your 
manner. 

Kenealy.  When  Mr.  Hawkins  called  me  a  liar  in  open 
Court,  he  was  not  reproved. 

Hawkins.   I  never  called  you  a  liar. 

Kenealy.  You  said  I  stated  what  was  false ;  and  there 
was  no  interference  on  the  part  of  the  Court. 

Chief  Justice.  Because  we  thought  it  was  six  of  one  and 
half  a  dozen  of  the  other. 

At  one  time  the  Chief  Justice  said  that  Dr.  Ke- 
nealy had  treated  him  during  the  trial  with  marked 


92  TIOHBOENE. 

disrespect,  and  that  gentleman  had  the  hardihood 
to  reply  that  he  (Kenealy)  had  shown  "  great 
forbearance  "  towards  his  Lordship  ! 

So  different  is  an  English  court-room  in  fact 
from  what  we  in  this  country  are  wont,  fondly  and 
admiringly,  to  picture  it  to  ourselves.  But  such 
scenes  are  better  than  those  exhibited  in  New 
York,  in  sp  far  as  they  are,  at  least,  fair  and  honest 
fights. 

Speaking  to  the  story  of  the  seduction  of  Miss 
Kate  Doughty,  the  learned  counsel  complained  of 
its  introduction  as  one  of  the  three  main  issues  in 
the  case,  inasmuch  as  it  tended  to  cause  the  deci- 
sion to  be  influenced  by  feeling,  passion,  and  preju- 
dice, rather  than  by  calm  and  sober  reasoning  and 
judgment.  But  the  Court  gave  it  as  their  unani- 
mous opinion  that  the  seduction  and  the  sealed 
packet  constituted  a  cardinal  point,  and  that  if  it 
had  not  been  included  in  the  indictment  the  Crown 
would  have  been  open  to  serious  and  just  complaint. 
Dr.  Kenealy  spoke  of  it  as  a  most  lamentable  affair, 
of  which  he  thought  with  sorrow  by  night  and  by 
day.  The  story  had  been  "forced"  from  his 
reluctant  client  in  the  witness-box  by  Sir  John 
Coleridge.  But  since  the  issue  was  made  by  the 
prosecuting  counsel.  Dr.  Kenealy  would  meet  it, 
and  asserted  his  intention  of  maintaining  its  truth. 

During  this  long  speech  of  the  worthy  and 
facile  doctor,  his  auditors  were  not  always  able  to 
control  their  impatience.  The  jury  were  often 
provoked  into  expostulation  at  his  usurpation  of 
their  time,  and  even  the  better-trained  members 


TICHBORNE.  93 

of  the  bench  could  not  always  restrain  the  expres- 
sion of  their  similar  feelings.  Mr.  Justice  Mellor 
one  day  told  the  counsel  that  "  Life  was  not  long 
enough  for  such  a  trial,"  and  on  another  occasion, 
in  picturesque  metaphor,  he  begged  the  gentleman 
to  "  use  a  shovel  instead  of  a  teaspoon."  The 
doctor,  undoubtedly,  needed  a  good  deal  of  time 
for  the  double  task  of  explaining  how  he  designed 
to  meet  the  elaborate  case  made  out  by  his  oppo- 
nents, and  of  setting  forth  his  own  even  more 
lengthy  narrative  ;  but  he  could  have  done  this 
more  briefly  had  he  taken  the  pains  to  compress, 
and  it  was  obviously  bad  policy  to  harass  the  tem- 
pers of  those  who  had  the  fate  of  his  cause  at  their 
disposal. 

When,  at  length.  Dr.  Kenealy  sat  down  at  the 
close  of  his  address,  and  it  was  found  that  he  had 
really  finished  it  and  that  the  strong  hours  had  at 
last  conquered  even  him,  he  was  greeted  with 
rounds  of  applause  ;  whether  in  recognition  of  the 
excellence  of  his  achievement  or  in  gratitude  that 
he  had  brought  it  to  an  end,  does  not  fully  appear. 

Collateral  to  the  trial,  yet  perhaps  not  an  unin- 
teresting illustration  of  the  enterprising  spirit  of 
the  age,  is  an  advertisement  which  just  at  this  time 
found  its  way  into  the  "  London  Times  "  (we  may 
be  excused  for  inserting  it),  as  follows :  — 

"The  Claimant's  house, his  butcher's  shop,  now  standing 
in  Wagga-Wagga,  New  South  Wales,  for  sale.  A  splendid 
investment  for  speculators.  The  house  is  made  of  logs,  has 
a  brick  chimney  and  a  bark  roof.    On  the  door  still  remain 


94  TICHBORNE. 

pencilled  accounts  of  sales  of  meat,  written  by  the  Claimant 
himself.  The  whole  structure  can  be  easily  taken  down ; 
the  door,  chimneys,  and  sheets  of  bark  (roof)  packed  in 
cases,  and  by  the  aid  of  plans  and  photographs  erected  any- 
where. The  logs  will  be  numbered  and  also  the  sheets  of 
bark,  and  every  thing  done  to  render  its  re-erection  an  easy 
matter.  This  remarkable  specimen  of  an  Australian  bush 
house,  rendered  particularly  interesting  through  the  most 
remarkable  trial  of  modern  times,  will  be  sent  some  four 
hundred  miles  by  bullock  wagons,  and  put  on  board  a  ship 
bound  direct  to  London,  for  the  sum  of  £2,400.  Affidavits 
will  also  accompany  it  to  prove  its  authenticity.  The  time 
occupied  by  transit  will  occupy  nearly  five  months.  When 
the  above-named  sum  is  paid  to  the  London  branch  of  the 
Union  Bank  of  Australia,  in  my  name,  immediate  steps  will 
be  taken  to  forward  the  house,  and  instructions  will  be  sent 
by  the  bank  to  the  Melbourne  branch.  —  G.  B.  Allen, 
Melbourne,  Victoria" 

Dr.  Kenealy  began  his  evidence  for  the  defence 
by  marshalling  a  perfect  host  of  witnesses  from 
Wapping,  who  overflowed  the  court-room  and 
Westminster  Hall,  that  most  spacious  of  ante- 
rooms, in  abundance  like  the  locusts  of  Egypt. 
They  were  the  old  acquaintances  of  Arthur  Orton, 
and  constituted  a  horde  much  less  distinguished, 
if  more  numerous,  than  the  gentlemen  and  ladies 
who  had  appeared  as  the  friends  of  the  lost  heir  of 
Tichborne  Park.  Taken  in  the  mass,  their  testi- 
mony must  be  acknowledged  to  present  a  some- 
what motley  aspect ;  yet,  though  many  weak  spots 
were  developed  in  it,  altogether  it  was  by  no  means 
devoid  of  force  and  value.     By  sheer  virtue  of  its 


TICHBORNE.  95 

great  quantity,  it  commanded  attention  and  re- 
spect, if  it  fell  short  of  bringing  absolute  convic- 
tion to  the  minds  of  the  hearers.  To  present  this 
evidence  in  detail,  would  be  to  set  before  the  reader 
a  task  almost  as  fatiguing  to  his  patience  as  Homer's 
"  Catalogue  of  the  Ships."  It  must  be  treated  gen- 
erally. 

The  witnesses  were  all  introduced  for  the  purpose 
of  swearing  that  the  defendant  was  not,  in  their 
opinion,  the  Arthur  Orton  whom,  in  days  long 
past,  they  had  seen  and  known,  more  or  less  inti- 
mately, at  Wapping.  This  assertion  they  all  gal- 
lantly made,  pouring  in  interminable  succession 
for  many  days  through  the  witness-box.  They 
were,  of  course,  for  the  most  part,  ignorant  per- 
sons, whose  beliefs  and  judgments,  individually 
considered,  were  not  very  impressive  or  convincing. 
Beyond  this,  too,  they  were  far  from  agreeing  with 
each  other  in  all  particulars,  even  in  all  essential 
particulars.  Yet  a  few  facts  were  established  by 
them  with  some  approach  towards  unanimity. 
Thus  those  who  could  say  any  thing  accurately  of 
the  hands  and  feet  of  Arthur  Orton  united  in 
asserting  that  they  were  very  large  and  coarse. 
The  hands  and  feet  of  the  defendant,  as  Dr.  Ke- 
nealy  contended,  were  unusually  small  for  a  man  of 
his  size.  The  witness  of  especial  importance  to 
this  point  was  a  shoemaker.  He  said  he  had  made 
boots  for  Arthur  and  for  his  elder  brother  George, 
from  the  time  that  Arthur  was  five  to  when  he  was 
fourteen  years  of  age.  Arthur  had  exceedingly 
large  feet;  and  indeed  the  reason  why  this  wit- 


96  TICHBORNB. 

ness  was  obliged  to  make  boots  for  him  was  be- 
cause he  had  none  ready-made  which  werp  large 
enough  to  fit  him.  By  good  fortune  he  still  had 
by  him  the  identical  last  which  he  had  used,  and 
upon  the  toe  of  which  he  had  nailed  pieces  of 
leather,  not  to  increase  the  length,  but  to  fill  out 
and  give  more  room  over  the  top.  The  statements 
of  this  witness  appeared  strong,  not  to  say  robust, 
on  behalf  of  the  defendant ;  but  they  were  some- 
what toned  down  by  a  cross-examination.  He  was 
then  obliged  to  admit  that  the  difference  in  size 
between  the  defendant's  boot  and  the  boot  made 
for  Arthur  was  less  than  an  inch ;  indeed  this 
difference  was  finally  reduced  to  half  an  inch :  and 
two  witnesses  who  had  made  boots  for  the  defend- 
ant said  his  foot  was  a  good  middle-sized  foot,  but 
unusually  large  in  the  heel  measure.  The  length 
was  Hi  to  111  inches.  Witness  further  admitted 
that  defendant's  boot  was  thin,  and  nicely  made, 
whereas  the  boot  of  the  butcher-boy  was  coarse  and 
heavy,  and  was  necessarily  made  much  too  large 
for  the  foot.  He  said  he  made  boots  for  Arthur 
and  for  George ;  that  George  was  the  oldest,  and 
Arthur  was  the  next  to  him ;  whereas  the  baptis- 
mal registers,  being  put  in  evidence,  showed  that 
George  was  eleven  year^  older  than  Arthur,  and 
that  there  were  seven .  children  intervening  be- 
tween them.  Later  in  the  day  he  brought  the  last 
into  Court.  It  was  handed  up  to  the  Chief  Jus- 
tice, who  remarked  on  the  freshness  of  the  leathern 
scraps,  and  the  brightness  of  the  brass  nails.  He 
reminded   the   witness   that,  by  his  story,  these 


TICHBORNE.  97 

should  be  twenty-five  or  thirty  years  old.  But 
the  shoemaket  stuck  to  his  last,  and  stoutly  averred 
that  the  leather  would  still  look  fresh,  and,  pro- 
vided it  were  not  greasy,  that  the  nails  also  would 
be  bright,  even  after  the  lapse  of  that  period. 
Afterward  in  argument  Mr.  Hawkins  said  it  was 
proved  that  some  of  this  leather  was  fresh. 

To  one  witness  the  defendant  owed  money. 
Another  witness  was  reminded  by  the  Chief  Jus- 
tice of  a  certain  lawsuit  which  had  occurred  during 
the  preceding  summer,  and  in  which  this  witness 
as  plaintiff  had  presented  an  uncommonly  poor 
appearance,  and  been  nonsuited,  under  circum- 
stances equally  ignominious  and  discreditable. 
Another  witness  stated  that  he  had  cauterized  a 
wound  in  Arthur  Orton's  arm,  caused  by  the  bite 
of  a  pony ;  and  that  he  performed  the  operation  so 
clumsily  that  it  left  an  indelible  scar  about  the 
size  of  a  shilling.  No  scar  which  could  fit  this 
description  was  found  upon  the  defendant.  The 
wife  and  family  of  this  witness  were  at  present 
residents  in  the  workhouse ;  not  because  he  had 
abandoned  them,  as  he  persisted  ;  for  he  had  been 
all  the  while  living  in  the  very  next  street ;  but 
because  it  was  a  sort  of  whim  or  fancy  with  his 
wife.  Witness  supposed  that  she  was  not  satisfied 
with  his  house,  and  so  left  it  for  a  larger  one.  An- 
other witness  said  he  had  bathed  with  Arthur,  and 
had  seen  no  brown  mark  on  his  body ;  but  wit- 
ness's recollection  was,  that  Arthur  was  then  a 
mere  lad,  whereas  it  was  shown  that  he  must  have 
been  twenty-three  years  old. 

7 


98  TICHBORNE. 

The  witnesses  for  the  Crown  had  sworn  that 
Arthur  Orton  did  not  wear  ear-rings;  and  the 
medical  testimony  was  to  the  effect  that  the  de- 
fendant's ears  had  never  been  pierced.  On  the 
other  hand,  a  large  proportion  of  the  witnesses  for 
the  defence  were  quite  positive  in  asserting  that 
Arthur  Orton  did  wear  wire  ear-rings ;  though  there 
were  some  few  of  a  contrary  opinion.  But  the 
testimony  of  many  of  these  witnesses  was  weakened 
by  showing  that  not  improbably  they  had  confused 
their  recollections  of  Arthur  Orton  with  their  recol- 
lections of  his  brother  Edmund.  Edmund,  it  was 
clearly  proved,  had  worn  such  ear-rings  as  these 
witnesses  described.  In  support  of  this  theory  of 
a  confusion,  it  was  elicited  from  several  witnesses 
that  there  was  "a  strong  family  likeness"  among 
the  brothers.  Numerous  different  opinions  were 
expre.ssed  as  to  their  respective  ages,  showing  the 
indistinctness  and  uncertainty  of  the  reminiscences ; 
and  that  what  was  thought  honestly  enough  to  be 
the  recollection  of  one  of  the  family  might  in 
fact  be  the  recollection  of'  another.  Some  said 
that  Arthur  was  quite  visibly  pock-marked,  which 
others  denied.  Some  said  that  he  had  a  scar  on 
his  face,  and  some  said  that  he  had  not.  One 
witness,  striking  out  an  original  theory  of  his  own, 
said  that  the  defendant  was  not  Arthur  Orton 
because  he  was  "  not  big  enough."  Another  had 
a  story  that  he  once  came  into  George  Ortbn's 
butcher's  shop  at  Wapping,  and  fell  down  suddenly 
ill  with  the  cholera;  that  Arthur  was  present, 
holding  a  knife  in  his  hand,  and  was  so  startled 


TICiaBORNE.  99 

that  he  let  it  slip,  and  it  cut  him  across  the  palm 
of  his  hand.  At  least  Arthur  afterward  showed 
to  this  witness  a  scar  across  his  palm,  and  accounted 
for  it  in  this  manner.  Defendant  had  no  such 
scar. 

While  all  these  witnesses,  amid  so-  numerous 
discrepancies  and  contradictions  in  the  minutiae  of 
their  recollections,  and  in  the  reasons  for  their 
opinions,  still  united  in  expressing  the  same  pivotal 
belief  that  the  defendant  was  not  Arthur  Orton, 
many  were  yet  induced  to  say  that  the  defendant 
did  resemble  George  Orton,  the  father.  Some  said 
that  such  a  resemblance  existed  about  the  upper 
part  of  the  face  ;  some  that  they  traced  a  likeness 
in  the  lower  part,  about  the  neck.  One,  though 
asserting  that  he  was  almost  positive  that  the  de- 
fendant was  not  Arthur,  nevertheless  acknowledged 
that  he  had  "  the  eyebrows  of  the  old  gentleman." 
One  or  two  others  went  so  far  even  as  to  acknowl- 
edge that  there  was  a  resemblance  between  Arthur 
Orton  himself  and  the  defendant  in  some  features. 
It  was  suggested  by  Mr.  Hawkins  that  these  wit- 
nesses might  have  been  confused  and  deceived  by 
having  their  old  acquaintance,  whom  they  had  been 
wont  to  see  in  his  butcher's  frock,  suddenly  pre- 
sented to  them,  after  so  long  an  interval,  clad  in 
fine  clothes,  and  in  the  company  of  gentlemen. 
Following  up  this  idea,  some  of  them  were  brought 
to  admit,  in  cross-examination,  that  at  first  they 
"  fancied  it  was  Orton,"  or  that  they  were  not  at 
once  satisfied  that  it  was  not  he.  The  memory  of 
one  was  tested  by  showing  him  a  photograph  of 


100  TICHBOENE. 

Arthur,  taken  in  the  Wapping  days,  which  he  failed 
to  recognize. 

A  "  pharmaceutical  and  analytical  chemist," 
whom  untoward  fate  obliged  to  live  in  the  obscu- 
rity of  a  garret  at  St.  George's-in-the-East,  said  he 
dressed  a  cut  on  Arthur  Orton's  cheek,  caused  by 
a  fall  from  a  pony ;  that  this  defendant  did  not 
resemble  Arthur  in  the  least ;  that  Arthur  was 
"  a  big,  burly  man,"  whereas  defendant  was  "  a 
stout  gentleman."  The  difference  was  marked 
and  substantial  in  the  opinion  of  the  chemist. 

Referring  to  all  this  class  of  testimony  in  his 
closing  argument,  Mr.  Hawkins  said  that  between 
them  the  witnesses  had  managed  to  make  a  perfect 
Arthur  Orton  out  of  the  features  of  the  defendant ; 
one  acknowledging  a  likeness  between  the  two  in 
one  feature,  another  tracing  a  similitude  in  another 
feature,  and  so  on  through  the  entire  physiognomy 
and  even  figure.  Nor,  as  he  well  said,  could  such 
attempts  at  accurate  reminiscence  and  description 
be  safely  trusted,  even  if  made  shortly  after  seeing 
a  familiar  face,  as  any  one  might  learn  by  trying 
the  experiment. 

Some  Tichborne  witnesses,  called  for  the  defend- 
ant, had  seen  Roger  and  his  cousin.  Miss  Kate 
Doughty,  walking,  unattended,  in  each  other's 
company  about  the  neighborhood  of  the  place.  A 
laborer  at  the  Park  had  seen  them  thus  in  the 
"  by-walks "  there  ;  and,  on  the  day  of  Roger's 
departure,  he  saw  them  near  the  park  wall,  stand- 
ing alone  together  "  a-kissin'  and  cryin'  and  rubbin' 
one   another's   eyes   with   a  white    hanky  chuff." 


TICHBORNE.  101 

Another  had  seen  them  in  the  appropriate  propin- 
quity of  the  "  Lovers'  Seat,"  and  others  had  seen 
them  at  a  spot  romantically  called  the  "  Grotto." 
A  photograph  of  this  grotto  was  put  in  evidence, 
which  gave  the  idea  of  a  secluded  spot.  But  the 
judges  said  they  had  seen  it,  and  it  lay  exposed  to 
full  view,  enclosed  between  a  public  footway  and 
a  towing-path.  Kenealy  said  the  sun  could  not  lie. 
But  the  judges  said  that  the  likenesjs  did  no  credit 
to  the  photographer's  skill,  and  gave  an  entirely 
erroneous  impression  of  the  spot.  One  witness,  at 
least,  was  sure  she  had  seen  Roger  at  the  Park  only 
a  week  or  fortnight  before  he  went  away  to  South 
America  ;  thus  contradicting  Lad}'  Doughty's  dying 
deposition  and  the  evidence  of  Lady  Radcliffe,  of 
Mrs.  Nangle  and  of  Miss  Nangle.  But  this  testi- 
mony was  badly  mangled,  in  good  time,  by  cross- 
examination  and  evidence  in  rebuttal ;  by  which 
it  was  made  to  appear  that  some  of  the  occasions 
referred  to  must  be  set  back  in  the  years  of  early 
boyhood  and  girlhood,  and  that  others  were  either 
wholl}'  imaginary  or  else  very  inaccurately  remem- 
bered ;  for,  at  the  times  very  positively  named  for 
them,  Roger  was  elsewhere. 

Miss  Eliza  Froude  remembered  Roger  Tich- 
borne  with  especial  clearness,  from  the  fact  of  his 
having  offered  to  wash  two  favorite  cats  which  she 
"  idolized."  She  should  know  him  among  a  thou- 
sand, and  was  sure  defendant  was  he.  But  she 
seems  to  have  been  an  eccentric  old  lady,  for  she 
obstinately  refused  to  look  at  a  photograph  of  the 
veritable  Roger,  saying  that  she  had  never  been 


102  TICHBORNE. 

willing  to  accept  a  photograph  in  her  life  save  one 
of  a  pet  dog  !  Her  peculiar  aversion  was  respected, 
and  the  photograph  was  withdrawn  from  before  her 
unwilling  eyes. 

Some  Australian  witnesses  gave  evidence,  which 
if  believed  must  have  proved  a  part  at  least  of 
the  defendant's  case  :  they  had  seen  and  known  in 
Australia  a  man  named  Orton,  and  another  man 
named  Tom  Castro.  Castro  and  Orton  were  dif- 
ferent individuals  :  there  could  be  no  doubt  about 
that,  for  they  had  been  seen  together  frequently, 
so  that  it  was  impossible  to  account  for  and  explain 
away  this  evidence  by  saying  that  one  and  the 
same  man  had  gone  .by  the  different  names  at  dif- 
ferent places  or  times.  Castro  and  Orton  had  asso- 
ciated together  ;  they  had  kept  low  company  and 
been  bushrangers  —  which  is  Australian  for  high- 
waymen —  together.  This  defendant  was  certainly 
not  Orton,  and  as  certainly  was  believed  by  these 
persons  to  be  Castro.  Orton,  as  they  remembered 
him,  had  broad  feet,  was  pock-marked,  and  had 
a  scar  on  the  cheek.  One  of  these  witnesses 
described  himself  as  "  a  highly  respectable  sly 
grogsman  and  butcher,"  who  supplied  meat  and 
drink  to  the  bushrangers,  but  himself  never  got 
mixed  up  in  any  dishonest  scrapes.  Mr.  Hawkins 
suggested  that  he  did  not  undertake  to  prove  that 
no  person  save  this  defendant  had  ever  borne  the 
name  of  Orton  in  Australia,  nor  could  the  jury 
safely  make  such  an  assumption. 

Several  persons  from  Tichborne  testified  that 
tlie  defendant  was,  in  their  opinion,  the  genuine 


TICHBOENE.  103 

Roger.  A  charwoman  at  the  Park  "  proved  him 
in  her  own  mind  to  be  Sir  Roger,"  because  Sir 
Roger  had  a  gruff  voice  and  spoke  like  a  Hamp- 
shire man.  A  directly  opposite  cause  persuaded 
the  wife  of  the  farm  bailiff  of  the  same  identity: 
she  knew  the  defendant  was  Sir  Roger  because  he 
had  the  "  same  quiet  soft  voice,"  which  had  been 
an  attribute  of  the  young  heir. 

Several  of  the  Tichborne  witnesses  swore  that 
Roger  was  not  tattooed  upon  the  arm.  One  had 
seen  his  arms  bared  when  he  was  helping  to  make 
a  cairn,  and  saw  no  tattoo  marks  upon  him  ;  another 
had  seen  him  with  his  shirt-sleeves  turned  up,  grub- 
bing up  an  oak  stump.  Another  had  seen  him  with 
his  arms  bare  while  shooting.  A  barmaid  had  seen 
him  Avashing  his  hands,  with  his  shirt-sleeves  rolled 
up,  after  he  had  been  thrown  from  a  dog-cart.  All 
these  and  many  more  had  never  seen  any  marks  on 
either  arm.  Some  of  the  servants  and  soldiers  in 
Roger's  old  regiment  told  also  when  and  how  they 
had  sometimes  happened  to  see  his  arms  bare,  and 
said  they  had  noticed  no  tattooing.  One  had  fenced 
with  him,  another  had  sparred  with  him,  and  so  on 
through  an  enormous  list. 

Bogie,  a  negro,  and  an  old  family  servant  at  the 
Park,  went  out  to  Australia,  met  the  defendant  at 
Sydney,  recognized  liim,  and  was  recognized  by 
him  and  had  ever  since  lived  with  him,  accompany- 
ing him  in  his  voyage  home,  and  being  since  sup- 
ported by  him."  His  evidence  was  all  that  Kenealy 
could  desire.  He  knew  defendant,  he  said,  by  his 
likeness  to  the  Tichborne  family.     He  had  often 


104  TICHBORNE. 

seen  Roger's  bare  arm,  and  had  noticed  no  tattoo 
marks  upon  it.  He  had  seen  Roger  and  Miss 
Doughty  go  out  in  each  other's  company  unat- 
tended, and  return  in  the  same  manner.  He 
thought  Lady  Tichborne's  mind  to  be  quite  sound 
and  well-ordered.  He  had  given  the  defendant  no 
information,  and  had  not  in  any  manner  "  posted 
him  up  "as  to  family  matters  and  incidents.  A 
thorough  cross-examination  failed  to  shake  his 
consistency.  It  was  part  of  the  argument  of  Mr. 
Hawkins  that  this  Bogle,  who  had  adhered  firmly 
to  the  defendant  from  the  beginning,  had  been 
sedulously  coaching  him  and  helping  him  in  every 
way,  as  he  was  so  well  able  to  do,  if  he  chose. 

An  old  friend  of  Roger  was  convinced  of  his  iden- 
tity with  defendant,  because  defendant  had  remem- 
bered that  on  a  certain  occasion  they  had  smoked  two 
death's-head  pipes  together,  —  a  circumstance  which 
he  was  morally  confident  he  had  never  mentioned 
to  any  one.  The  fact  that  defendant  remembered 
such  minute  and  trivial  matters  as  this,  while  he 
wholly  forgot  many  of  the  really  grand  and  im- 
portant events,  was  made  by  Mr.  Hawkins  an  argu- 
ment to  support  his  theory  of  coaching.  Whatever 
he  had  learned  from  the  greatest  to  the  smallest 
matters  he  recited  accurately.  Of  all  other  matters 
he  was  ignorant.  But  the  defence  urged  that  such 
insignificant  scraps  of  recollection  were  the  very 
surest  and  safest  tests  of  genuineness  that  could 
possibly  be  furnished.  All  this  was  like  the  famous 
interview :  —  Have  you  a  strawberry-mark  on  your 
left  arm  ?  Yes.  Then  you  are  my  long  lost  brother  I 


TICHBORNE.  105 

Only  the  proofs  of  identity  were  much  simpler  than 
a  birth-mark.  A  person  would  be  summoned  to 
visit  defendant  and  see  if  he  could  identify  him. 
The  visitor,  said  Mr.  Hawkins,  would  then  say, 
Do  you  remember  giving  me  a  pipe  of  'baccy  one 
day  ?  The  defendant  of  course  replied.  Yes ;  and 
the  interrogator  exclaimed,  Then  you  are  the  man  I 
and  forthwith  came  upon  the  stand  to  testify  to  this 
conclusive  rencounter  and  to  assert  his  own  per- 
fect conviction  of  the  identity. 

So  another  witness  would l)e  told  to  walk  down 
Pall  Mall  in  the  forenoon  about  a  certain  hour,  at 
which  time  defendant's  daily  habits  usually  led 
him  to  walk  through  that  thoroughfare,  and  to  see 
whether  he  could  see  the  defendant ;  but  he  was 
forewarned  that  the  defendant  had  changed  in 
some  respects  very  much,  especially  in  becoming 
an  extremely  bulky  man.  So  at  the  appointed 
hour  the  predestined  witness  would  go  into  Pall 
Mall  and  forthwith  would  encounter  an  extremely 
fat  and  well-dressed  man.  A  recognition  inevitably 
followed. 

There  had  been  much  testimony  offered  by  the 
prosecution  concerning  the  color  of  Roger's  hair, 
which  was  siipposed  to  have  been  much  darker 
than  that  of  the  defendant,  and  a  more  pure  brown, 
with  less  of  the  reddish  tinge.  The  bulk  of  the  testi- 
mony would  go  to  establish  that  Orton's  hair  was 
quite  light,  and  that  Roger's  hair  was  quite  dark ; 
but  naturally  there  was  much  discrepancy  in  this 
respect.  One  of  the  witnesses  examined  upon  this 
subject,  a  woman,  remarked  that  she  had  noticed 


106  ■  TICHBORNE. 

that  during  the  trial  of  the  civil  cause  the  claim- 
ant's hair  grew  gradually  but  steadily  a  darker 
brown  day  by  day.  Dr.  Kenealy  accordingly  called 
the  hair-dresser  who  had  attended  with  great  fre- 
quency, often  as  much  as  once  a  day,  pending  the 
ejectment  suit,  upon  the  defendant,  and  who  stated 
that  the  defendant's  hair  had  not  changed  color 
while  it  was  under  his  charge.  He  brought  a 
bottle  of  the  only  hair-wash  which  he  had  been 
wont  to  use  upon  defendant's  head,  and  proposed 
to  test  it  by  application  to  the  hair  of  Mr.  Hawkins, 
if  that  gentleman  had  any,  otherwise  upon  his 
learned  wig.  It  was  an  odd  circumstance  that 
Cubitt  in  advertising  the  personal  traits  of  the 
missing  heir  in  Australia  in  1865  had  by  a  blunder 
described  him  as  having  "light  brown  hair."  One 
of  the  marks  of  identity  then  noted  on  behalf  of 
the  claimant  was  that  he  also  had  light  brown  hair. 
The  truth,  as  was  abundantly  shown  afterward, 
was  that  Roger  had  dark  brown  hair,  and  now  it 
was  said  that  any  one  could  see  that  this  defendant 
had  also  dark  brown  hair;  that  the  color  was 
natural,  and  not  affected  by  any  artificial  process ; 
and  that  this  was  a  pointed  difference  between  him 
and  Orton,  who  had  light  brown  hair. 

Miss  Braine,  who  had  been  governess  to  Miss 
Kate  Doughty  in  1850,  and  in  that  employment 
had  become  well  acquainted  with  Roger,  testified 
that  when  she  first  saw  defendant  she  did  not 
think  that  he  was  Roger ;  but  that  continuing  to 
look  at  him  she  had  come  to  fancy  that  she  traced 
a  resemblance  to  the  family  face  in  his  features. 


TICHBORNE.  107 

In  the  course  of  conversations  with  him  he  had 
appeared  to  remember  incidents  which  had  occurred 
at  Tichborne  at  times  when  he  and  she  had  both 
been  there ;  and  she  had  become  convinced  that 
he  was  indeed  the  person  he  claimed  to  be.  She 
recognized  Roger's  "  dimpled  knuckles  "  in  defend- 
ant's fat  hands;  but,  strange  to  say,  her  minute 
observation  had  never  led  her  to  notice  the  peculiar 
or  deformed  thumb.  She  asserted  that  the  de- 
fendant's manners  were  those  of  a  "  perfect  gentle- 
man." She  had  been  living  in  the  house  with  him, 
appearing  in  the  character  of  his  friend,  if  not  of  a 
direct  dependant  on  his  hospitality,  since  his  return 
to  England.  Mr.  Hawkins,  cross-examining  her, 
asked  if  she  still  entertained  the  same  good  opinion 
of  defendant  after  hearing  liim  allege  that  he  had 
seduced  her  former  pupil.  She  replied  that  had  he 
been  in  possession  of  his  title  and  estates  she  should 
have  discontinued  her  friendship  for  him  after  such 
a  confession,  but  since  he  was  oppressed  and  perse- 
cuted she  still  preserved  her  intimacy  with  him, 
though  certainly  she  had  been  deeply  grieved  at 
the  tale.  British  ideas  of  the  perfect  gentleman 
were  somewhat  peculiarly  developed  during  this 
trial,  for  if  nothing  else  was  established  it  was 
certainly  very  clearly  shown  that  Roger  Tichborne 
was  intoxicated  with  much  frequency.  An  officer 
testifying  for  the  defendant,  said  that  Roger  used  to 
get  into  a  stupid,  soaked  state  -every  night,  so  that 
one  could  hardly  say  whether  he  was  drunk  or  not. 
Some  evidence  also  went  to  show  that  he  was  ignor- 
ant to  an  extraordinary  degree,  even  of  the-rules  of 
grammar. 


108  TICHBOENE. 

The  Carabineers  came  up  literally  in  platoons 
to  swear  that  defendant  was  their  old  o£6icer, 
Roger  Tichborne.  Sometimes  the  counsel  for  the 
Crown  declined  to  be  at  the  trouble  of  examining 
these  witnesses.  At  other  times  a  few  questions 
were  put  to  them  with  a  view  to  showing  that 
they  had  not  been  given  a  fair  opportunity  of 
forming  unprejudiced  and  impartial  opinions  upon 
the  point;  for  that  they  had  been  in  nearly  all 
cases  carefully  prepossessed,  and  their  judgment 
biassed  by  being  told  beforehand  that  Sir  Roger 
was  come  home,  and  that  they  were  to  be  taken 
to  see  him.  The  British  private  soldier  is  seldom 
a  man  of  very  nice  observation  or  keen  intellectual 
power,  and  the  testimony  of  these  bands  of  mili- 
tary swearers  seems  to  have  gone  for  little  in  the 
general  estimation.  The  officers,  to  whose  per- 
ception greater  weight  was  attached,  appeared, 
generally,  to  be  upon  the  side  of  the  Crown.  At 
this  trial  only  two.  Colonel  Norbury  and  Captain 
Cunliffe,  testified  in  behalf  of  the  defendant. 

During  the  daj^s  devoted  to  the  examination  of 
these  witnesses,  the  foreman  of  the  jury  applied 
to  the  Chief  Justice  for  orders  to  have  lunch  served 
to  the'  jury  at  the  expense  of  the  treasury.  This 
would  apparently  cause  the  expense  to  be  included 
as  a  part  of  the  costs  of  the  suit ;  but  Dr.  Kenealy, 
far  from  offering  any  objection,  expressed  a  politic 
hope  that  the  desired  repasts  might  be  fujnished 
"  on  the  most  magnificent  and  splendid  scale." 
So  it  was  arranged  that  the  jury  should  thereafter 
be  lunched  at  the  public  charge. 


TICHBOKNE.  109 

The  regimental  tailor  was  called,  and  said  that 
he  took  his  ledger  with  him  when  he  first  went 
to  see  defendant,  and  by  its  aid  he  propounded 
various  interrogatories  concerning  clothes  furnished 
by  him  to  Lieutenant  Tichborne.  Defendant  said 
it  was  a  severe  test  of  his  memory,  but  did  not 
shirk  it,  and  answered  with  such  accuracy  that 
witness  was  convinced  he  was  the  person  he 
assumed  to  be. 

A  "  professional  pedestrian "  testified  to  the 
smallness  of  Roger's  feet.  A  butcher  from  the 
Australian  gold  diggings  directly  afterward,  tes- 
tified to  the  uncommon  largeness  of  Arthur 
Orton's  feet  and  hands.  He  had  met  Orton  at 
the  gold-diggings,  and  thought  him  a  man  of 
"  villainous  appearance,"  much  like  a  ticket-of- 
leave  man,  with  a  rough  vulgar  voice,  and  greatly 
addicted  to  the  use  of  oaths.  Witness  had  good 
reason  to  remember  the  size  of  Orton's  hands,  for 
they  had  once  been  used  in  his  own  castigation.  In- 
deed the  big-fisted  Orton  had  knocked  this  witness 
down,  and  witness  was  quite  sure  that  the  "pleas- 
ant gentleman "  who  appeared  as  the  defendant 
in  this  cause  was  not  the  person  who  had  used 
him  so  ill. 

This  last  witness  said  that  Orton  had  wires  in 
his  ears  and  a  scar  on  his  cheek.  The  next  wit- 
ness knew  Orton  well,  and  remembered  neither 
ear-rings  nor  a  scar.  The  next  witness  did  remem- 
ber the  ear-rings,  and  did  not  remember  the  scar ; 
and  so  the  testimony  for  the  defendant  went  on. 
It  was  a  perfect  pot-pourri  of  discordances.     Le- 


110  TICHBORNE. 

gions  of  witnesses  were  called ;  it  would  fill  a 
large  volume  to  give  the  briefest  categorical  ab- 
stract of  their  evidence.  They  left  Arthur  Orton's 
personal  appearance  in  the  most  dubious  condition 
possible.  A  dozen  different  men  might  have  been 
constructed  out  of  the  features  and  peculiarities 
which  were  furnished  for  this  single  individual. 
But  all  the  witnesses  were  agreed  on  the  one 
point,  that  their  memory  of  Arthur  Orton  differed 
in  essential  particulars  from  the  form,  features, 
voice,  manners,  and  other  characteristics  of  the 
man  before  them.  This  was  really  the  important 
point ;  for  two  persons  may  describe  the  same 
phj'siognoray  very  differently,  and  yet  both  will 
doubtless  recognize  it  with  equal  accuracy  when 
it  is  before  them.  A  very  large  number  of  wit- 
nesses had  only  just  seen  the  defendant  on  the 
day  before,  or  perhaps  on  the  very  day  on  which 
they  gave  their  testimony,  and  consequently  it 
was  obvious  that  they  had  had  only  vQry  slight 
opportunity  for  forming  a  deliberate,  careful,  and 
impartial  opinion,  or  for  comparing  him  with  their 
memorj^  of  Orton.  For  it  could  not  be  pretended, 
if  the  defendant  really  were  Sir  Roger,  that  he 
had  not  so  far  changed  that  it  was  impossible  to 
recognize  him  instantly.  Even  his  predetermined 
mother  could  hardly  achieve  that  feat. 

One  Brown,  styling  himself  "  Captain,"  but  at 
present  the  "  proprietor  of  a  pudding-shop,"  took 
the  stand  with  the  very  best  will  toward  the 
defendant,  but  whether  he  did  his  prottge  more 
good  or  himself  more  harm  may  be  regarded  as  a 


TICHBORNE.  Ill 

fair  question.  Before  the  case  was  concluded, 
his  name  had  become  a  sort  of  by-word,  which  Dr. 
Kenealy  could  not  mention  without  exciting  ridi- 
cule and  laughter,  and  laying  himself  open  to  a 
series  of  embarrassing  queries.*  The  dates  in  his 
testimony  should  be  noticed  as  of  special  import- 
ance. In  1853  and  1854  he  was,  as  he  said,  a 
shipping  clerk  at  Rio.  In  April  of  the  latter  year 
he  was  introduced  to  Mr.  Tichborne  by  Captain 
Oates  (one  of  the  witnesses  for  the  Crown,  it  will 
be  remembered),  and  Captain  Birkett  in  command 
of  the  "  Bella."  He  and  Mr.  Tichborne  played 
billiards  and  drank  together,  and  twice  when  his 
friend  drank  too  much  he  put  the  ppor  gentleman 
to  bed  in  his  own  room ;  on  each  occasion  he  saw 
Mr.  Tichborne  take  a  bath  the  next  morning,  and 
noticed  a  brown  mark  on  his  left  hip,  and  a  mark 
about  four  inches  above  his  wrist  on  the  left  arm ; 
but  saw  no  tattoo  marks.  Captain  Oates  and  other 
captains  and  Roger  were  seen  frequently  by  this 
witness  at  Rio  playing  billiards  together,  and  also 
pretty  often  being  very  drunk  indeed  in  each  other's 
company.  Especially,  witness  confirmed  the  de- 
fendant's story  of  his  having  come  on  board  the 
'"Bella,"  the  day  she  set  sail,  quite  drunk,  —  so 
drunk  that,  as  defendant  said,  he  had  little  or  no 
memory  of  what  occurred.  Witness  went  on  board 
the  vessel  that  morning  to  collect  a  bill  for  goods 
supplied  to  her  captain  by  his  employer.  He  defied 
the  whole  world  to  say  he  was  not  speaking  the 
truth  when  he  said  that  he  saw  Captains  Birkett, 

*  At  the  time  of  this  printing,  he  stands  committed  for  exam- 
ination on  a  clmrge  of  perjury  in  tliis  case. 


112  TICHBORNE. 

Oates,  and  Hoskins  and  Mr.  Tichborne,  all  come  on 
board  together,  "  all  being  pretty  well  drunk." 
This  witness  also  testified  that  he  saw  an  American 
bark  (a  three-masted  craft),  hailing  from  New 
Bedford,  lying  at  Rio  in  1853.  He  went  on  board 
her ;  knew  the  captain,  LaAvrence,  and  the  mate, 
Louis  (the  Luie  who  is  to  be  heard  of  later)  ;  she 
was  named  the  "  Osprey  ;  "  lay  in  port  there  for  a 
long  while ;  but  the  date  of  her  sailing  he  could 
not  state.  While  playing  billiards  with  Mr.  Tich- 
borne, he  had  noticed  a  malformation  or  peculiar 
formation  of  the  thumb  of  his  right  hand,  causing 
him  to  hold  his  cue  in  an  odd  fashion. 

This  was  a  pretty  good  body  of  evidence  to  come 
from  one  man,  and  Mr.  Hawkins  cross-examined 
him  severely.  He  admitted  that,  in  1868,  he  had 
gone  off  to  sea,  and  had  left  his  family  in  a  state  of 
destitution  ;  that  he  had  been  in  England  in  1866- 
1868,  and  was  then  well  aware  of  the  claims 
presented  by  this  defendant ;  that  he  well  knew 
that  his  old  comrade  of  the  bar  and  the  billiard- 
table  at  Rio  had  been  committed  to  Newgate  for 
perjury ;  that  all  this  while  he  had  carefully  kept 
the  secret  of  his  own  knowledge  in  the  premises, 
because  he  wished  not  to  be  mixed  up  in  the  case ; 
that  the  motive  which  finally  induced  him  to  "  un- 
bosom himself"  when  all  other  incentives  had 
failed  was  hearing  the  testimony  given  by  Captain 
Oates  for  the  prosecution,  which  was  all  untrue, 
and  which  he  forthwith  resolved  to  contradict. 
He  was  confronted  with  statements  made  by  him  to 
the  Local  Marine  Board  of  London  for  the  purpose  of 


TICHBORNE.  113 

obtaining  a  certificate  of  competency  to  act  as  Mas- 
ter Ordinary  in  the  foreign  trade.  He  had  at  that 
time  given  a  list  of  the  vessels  he  had  sailed  in,  with 
the  dates  ;  he  had  said  that,  from  December  15, 
1853,  to  January  1,  1858,  he  had  been  a  mate  on 
board  the  "Equity  "of  Boston  (England?)  He 
sought  to  explain  this  painful  discrepancy  by  saying 
that  the  dat€  1853  should  have  been  1854,  and  the 
mistake  could  have  been  rectified  by  the  original 
certificate,  had  he  not  unfortunately  lost  it.  But 
he  admitted  that  a  great  part  of  the  statement  then 
made  by  him  to  the  Board  of  Trade  was  false,  and 
given  only  to  meet  their  requisitions.  He  was  asked 
to  look  at  defendant's  thumb.  By  an  oversight 
probably  on  the  part  of  the  defendant,  that  person 
extended  his  left  hand,  and  witness  readily  saw 
and  recognized  the  malformation  which  he  had 
noted  upon  the  right  thumb  of  Tichborne.  When 
his  attention  was  called  to  the  circumstance,  he  was 
in  no  wise  abashed  ;  saying  only  that  he  had  indeed 
thought  it  was  the  right  thumb  ;  his  memory  must 
have  been  in  error. 

Two  or  three  witnesses  were  called  to  tes- 
tify to  the  appearance  of  an  "Osprey"  in  the 
port  of  Melbourne,  or  in  Hobson's  Bay  hard 
by,  in  the  summer  of  1854.  One  of  them  liber- 
ally testified  to  seeing  two  "  Ospreys "  there  at 
that  time  ;  one  bark-rigged,  the  other  a  small 
vessel.  The  defendant  had  the  option  between 
them.  A  corporal  in  the  Royal  Engineers  was 
on  board  the  "  Comet,"  steamer,  in  Hobson's 
Bay,  when,  on  July  23  or  24,  1854,  a  young  man 


114  TICHBORNE. 

and  several  sailors  were  transferred  to  it  from  a 
vessel  called  the  "  Osprey."  [The  defendant  had 
said  nothing  of  being  put  on  board  such  a  steamer.] 
On  Tuesday,  October  14,  the  one  hundred  and 
fifteenth  day  of  the  case,  the  famous  Jean  Luie  was 
called.  In  the  cosmogony  of  the  defence  this  per- 
son was  intended  to  assume  the  part  of  Atlas.  It 
was  an  unfortunate  design,  as  will  be  seen.  He 
was  a  Dane,  and  by  his  own  report  of  himself  had 
lately  come  from  America  to  Belgium,  on  board 
the  steamship  "  Circassian,"  in  pursuit  of  a  run- 
away wife.  This  errant  damsel,  in  addition  to 
abandoning  her  lawful  spouse  for  another  victim  of 
her  charms,  had  unfortunately  burned  all  papers  of 
her  proper  husband,  which  might  otherwise  have 
been  of  inestimable  service  in  corroborating  his  very 
strange  and  important  testimony.  Until  July  7, 
1873,  he  had  never  mentioned  to  any  person  whom- 
soever the  story  which  he  now  related.  But 
though  this  silence  had  been  kept  for  a  period  of 
nineteen  years,  his  reminiscences  emerged  from 
this  long  tunnel  of  time  in  a  singularly  fresh  and 
complete  condition.  In  February,  1854,  the 
American  vessel,  "  Osprey,"  sailed  from  Staten 
Island,  this  witness  being  on  board  in  the  capacity 
of  steward.  In  April  following,  being  then  some 
four  or  five  hundred  miles  off  the  coast  of  Brazil, 
the  "  Osprey  "  picked  up  a  boat,  purporting  to  come 
from  the  wrecked  vessel  "  Bella,"  containing  this 
defendant  and  five  sailors.  The  defendant  was 
then  delirious  and  physically  helpless.  Witness 
took,  charge  of  him  during  the  remainder  of  the 


TICHBORNE.  115 

voyage  ;  frequently  washed  him,  and  saw  upon  his 
body  an  "  olive  "  mark  in  the  place  where  this  de- 
fendant had  a  "  brown  "  mark.  The  defendant  at 
that  time  gave  his  name  as  "  Rogers."  He  wore  a 
rosary  with  a  small  silver  cross.  "  Rogers  "  was  never 
quite  right  in  his  head  while  on  board  the  "  Osprey," 
and  witness  used  to  intoxicate  him  with  brandy  in 
order  to  keep  him  quiet.  His  sole  occupations 
were  picking  oakum  and  whittling  a  stick.  When 
this  witness  came  to  London,  he  hunted  up  defend- 
ant with  much  difficulty  ;  but  when  he  found  him, 
he  recognized  him  as  the  rescued  "  Rogers,"  though 
certainly  much  changed  in  body  since  that  event. 

When  the  "  Osprey  "  arrived  at  Melbourne,  it 
was  in  the  height  of  the  gold  fever,  and  the  sugges- 
tion of  Dr.  Kenealy,  that  this  accounted  for  the 
non-appearance  of  the  surviving  sailors  from  the 
"  Bella,"  was  amply  borne  out  by  the  evidence  of 
this  witness.  Forthwith,  upon  making  port,  he 
said,  the  mate  and  all  the  sailors  deserted ;  the 
captain  also  ran  away,  having  first,  as  witness  be- 
lieved, sold  the  vessel  to  be  cut  up.  Witness  him- 
self, with  two  sailors  from  the  "  Bella  "  and  two 
from  the  "  Osprey,"  took  the  "  Bella's  "  boat,  and 
made  off  for  the  diggings  at  Ballarat ;  some  ten 
months  afterwards  he  had  parted  from  the  "  Bella  " 
men,  and  had  never  seen  them  since.  [It  will  be 
observed  that  this  does  not  agree  with  the  evidence 
of  the  corporal  from  the  steamer  "  Comet,"  supra 
p.  113] .  Witness  had  the  "  Gardep  of  the  Soul "  on 
board,  and  it  was  much  read  by  Mr.  "  Rogers." 
This  witness  had  given  to  Mr.  Whalley,  the  mem- 


116  TICHBORNE. 

ber  of  Parliament  who  so  warmly  befriended  the 
Claimant,  the  names  of  the  owners  of  the  "  Osprey," 
of  the  owners  of  the  cargo,  of  the  mate  and  others 
on  board  her,  and  of  the  stevedore  who  loaded  her 
at  New  York.  It  was  to  follow  up  the  information 
thus  imparted  that  Mr.  Whalley  made  his  expedi- 
tion to  the  United  States.  But  the  result  of  that 
expedition  had  been  carefully  kej^t  from  the  wit- 
ness, so  that  he  was  even  ignorant  whether  or  not 
Mr.  Whalley  had  succeeded  in  bringing  over  any 
witnesses.  This  witness  had  been  with  the  "  Os- 
prey  "  at  Rio,  and  saw  and  knew  Captain  Brown. 
But  it  was  remarked  that  he  called  himself  steward, 
while  Brown  had  called  him  mate  ;  and  that  he  said 
the  "  Osprey  "  belonged  at  New  York,  and  Brown 
had  said  that  she  belonged  in  New  Bedford. 

During  the  examination  of  this  witness  Mr. 
Hawkins  objected  with  much  indignation  that, 
though  the  defence  had  known,  as  appeared  by  this 
testimony,  ever  since  July  7,  that  the  "  Osprey  " 
hailed  from  New  York,  contrary  to  what  had  been 
averred  by  "  Captain "  Brown,  nevertheless  they 
had  not  corrected  the  information  previously  given, 
that  she  was  a  New  Bedford  vessel;  but  had  put 
the  Crown  to  the  useless  trouble  and  expense  of 
sending  out  to  bring  the  captain  and  mate,  with 
the  log  for  1854,  of  a  New  Bedford  "  Osprey." 
The  witness  was  examined  with  great  care  as  to 
his  movements  and  occupations  from  1854  to  the 
present  time.  He  was  compelled  to  give  a  com- 
plete sketch  of  his  life  during  this  period,  with 
such  data  as  might  be  necessary  for  investigations 


TICHBOENE.  117 

concerning  him  and  his  antecedents.  It  was  noted 
that  he  said  that  he  had  fallen  in  with  one  Jones  at 
the  Ballarat  diggings;  that  Jones  had  there  seen 
the  two  men  from  the  "  Bella,"  and  knew  the  story 
of  the  shipwreck ;  that  this  Jones  had  been  pre- 
viously called  by  the  defence,  but  that  he  had  not 
been  asked  as  to  his  meeting  with  Luie  or  the 
rescued  sailors,  or  in  any  way  examined  with  a 
view  to  corroborating  Luie's  story  in  the  particu- 
lars in  which,  if  the  story  were  true,  he  should 
have  been  able  to  confirm  it. 

Medical  evidence  was  adduced  given  by  Sir  Wil- 
liam Fergusson,  that  the  mark  on  defendant's  right 
ankle  was  not  in  a  proper  place  for  bleeding,  though 
his  fatness  made  it  difficult  to  discover  his  veins, 
and  a  clumsy  practitioner  might  have  made  an  in- 
cision at  this  spot.  The  mark  on  his  side  was  two 
and  a  half  or  three  inches  long,  and  about  half  as 
much  in  width ;  it  was  brown,  but  of  so  light  a 
shade  that  it  required  to  be  looked  at  for  some  time 
before  you  could  be  sure  of  the  tint.  The  peculiar- 
ity of  the  defendant's  thumb  might  have  been  caused 
by  a  severe  blow,  a  contusion,  or  a  bruise,  arresting 
the  development  of  the  nail;  if  thus  caused,  the 
accident  must  have  occurred  long  since,  —  ten  or 
twenty  years  ago.  He  did  not  agree  with  a  med- 
ical witness  called  for  the  Crown,  who  had  said 
that  the  same  condition  might  be  produced  by  arti- 
ficial means,  and  who  even  claimed  to  have  brought 
about  the  same  appearance  upon  his  own  thumb  by 
such  a  voluntary  process.  Another  medical  man 
said  he  had  discovered  the  scars  of  bleeding  on  de- 


118  •  TICHBORNE. 

fendant's  ankles.  But  he  had  never  practised  sur- 
gery, and  otherwise  he  appeared  badly  on  the  stand. 

Mr.  Whalley  narrated  as  much  as  was  called  for 
concerning  his  doings  in  America.  He  denied  that 
he  had  communicated  information  procured  by  him 
from  witnesses  there  or  elsewhere  to  defendant,  and 
said  that  he  had  interested  himself  so  actively  in 
behalf  of  the  Claimant  because  he  believed  that 
the  opposition  was  the  result  of  "a  Popish  and 
Jesuitical  conspiracy  to  deprive  him  of  his  rights." 

On  Monday,  October  27,  being  the  one  hundred 
and  twenty-fourth  day  of  the  trial.  Dr.  Kenealy 
announced  that  his  evidence  was  all  in. 

Mr.  Hawkins  thereupon  proceeded  to  call  several 
witnesses  in  rebuttal.  They  added  no  new  facts, 
and  simply  contradicted  divers  of  the  witnesses  who 
had  been  called  for  the  defence.  Thus  the  story  of 
the  barmaid  about  seeing  Roger's  arm  bared  when 
he  *was  washing  after  having  been  thrown  from 
a  dog-cart,  was  contradicted  by  the  gentleman  who, 
as  she  said,  was  then  with  Roger.  He  said  that 
he  had  never  known  Roger  Tichborne,  and  that  he 
had  never  been  thrown  out  of  a  dog-cart.  Colonel 
Bickerstaff  was  present  and  saw  Roger  bled  upon 
both  ankles,  at  Canterbury.  His  recollection  was 
perfect,  that  one  puncture  was  made  on  each  ankle. 
Captain  Oates  denied  the  whole  story  of  the  drunk- 
enness at  Rio  ;  denied  that  he  had  ever  played  bil- 
liards there  with  Roger ;  denied  that  he  had  ever 
seen  "  Captain  "  Brown  there  ;  denied  that  he  was 
acquainted  with  a  captain  in  whose  company  Brown 
said  he  had  often  seen  him  there  ;  and  generally  set 


TICHBORNE.  119 

himself  in  full  and  direct  opposition  to  Brown  in 
every  respect  that  he  was  able  to  do  so.  A  med- 
ical man  said  that  there  was  nothing  of  the  char- 
acter of  an  issue  mark  in  the  scar  upon  the 
defendant's  arm.  Sundry  other  contradictions  of 
a  like  kind  were  made,  the  most  important  of 
which  have  been  already  mentioned  in  narrating 
the  testimony  for  the  defence.  Then  a  prolonged 
adjournment  became  necessary  to  await  the  arrival 
of  witnesses  from  the  United  States,  summoned  to 
contradict  the  statements  of  Jean  Luie  about  the 
*'  Osprey,"  and  to  prove  him  to  have  testified  falsely 
in  his  account  of  himself,  and  to  be  altogether  a 
witness  not  entitled  to  credit. 

At  last,  on  November  27,  the  American  testimony 
was  begun.  Mr.  Purcell,  an  English  barrister,  had 
been  sent  over  to  conduct  the  investigation  at  New 
York  and  elsewhere.  He  had  searched  the  records 
of  the  custom-houses,  the  files  of  the  newspapers 
and  the  pilots'  books  at  New  York  city,  also  at  the 
neighboring  ports  of  Newark  and  Perth  Amboy, 
and  he  had  found  no  trace  of  the  arrival  or  clear- 
ance of  any  "  Osprey  "  in  1853  or  1854.  The  ste- 
vedore named  by  Luie  was  dead,  but  the  successor 
to  his  business  was  brought  over  by  Mr.  Purcell 
and  appeared  in  person,  testifying  that  the  firm 
loaded  no  "Osprey"  in  1853  or  1854.  Another 
witness,  from  a  New  York  custom-house  barge, 
whose  duties  were  in  the  harbor,  showed  that  it 
was  impossible  for  the  "  Osprey "  to  have  been 
lying  at  anchor  off  Staten  Island,  and  to  have 
loaded  there  at  the  time  named  by  Luie.      Pur- 


120  TICHBOENE. 

cell  had  been  unable  to  find  the  name  of  Luie 
on  crew  lists  at  times  when  he  ought  to  have  been 
able  to  find  it  had  Luie's  statements  been  true. 
He  could  find  no  evidence  of  the  existence  of  any 
person  of  the  name  of  Luie  in  New  York  for  some 
years  past.  Other  witnesses  testified  that  they  had 
made  careful  search,  and  had  been  able  to  find  no 
trace  of  Luie  or  of  persons  named  by  him,  either 
in  New  York  or  Chicago,  though  they  had  pursued 
the  investigation  carefully  in  accordance  with  the 
statements  which  he  had  given  in  his  evidence  for 
the  express  purpose  of  directing  them'.  Streets 
named  by  him  did  not  exist.  Strong  circumstan- 
tial evidence  was  adduced  to  show  that  Luie's 
account  of  his  whereabouts  within  a  short  time 
past,  since  his  arrival  in  Europe,  were  false.  It 
was  shown  that  he  was  not  a  passenger  in  the 
"  Circassian  "  upon  the  trip  when,  as  he  said,  she 
had  brought  him  from  New  York  to  Europe.  In 
short,  nearly  every  averment  that  he  had  made 
which  was  in  its  nature  capable  of  contradiction, 
was  proved  with  greater  or  less  certainty  to  be 
untrue. 

An  "  Osprey  "  appeared  upon  the  custom-house 
records  of  New  Bedford  as  leaving  there  June  4, 
1851,  and  returning  Oct.  1,  1854.  She  was  a 
bark ;  but  her  master's  name  was  M'Comber,  not 
Laurence  nor  Lewis  nor  Owen  ;  her  log  was  pro- 
duced,.and  in  April,  1854,  she  was  found  to  have 
been  anchored  in  Table  Bay,  Cape  of  Good  Hope. 
Indeed  she  was  never  near  the  coast  of  Rio  after 
1851.     No  Luie  was  on  board  her. 


TICHBORNE.  121 

A  steamship  "Osprey"  was  recorded  at  New 
Orleans ;  but  the  rescuing  ship  was  a  sailing  vessel. 
Another  "  Osprey"  also  appeared  to  have  been  at 
New  Orleans  in  1853 ;  but  she  was  a  British  ves- 
sel and  hailed  from  Liverpool ;  her  master's  name 
was  Willeston,  and  she  was  smaller  than  the  ship 
described  by  the  defendant. 

Something  led  to  the  suggestion  that  the  "  Os- 
prey "  had  been  changed  to  the  "  Helvetia  ;  "  but 
this. did  not  help  matters  much.  For  though  an 
"Helvetia"  was  found,  Marsh  master,  yet  none 
of  her  crew  lists  showed  the  name  of  Luie. 

Altogether  there  was  by  this  time,  when  Mr. 
Hawkins  ceased  to  produce  his  rebutting  testimony, 
so  exceedingly  little  left  of  Luie's  character  or  evi- 
dence that  the  fragments  seemed  scarcely  worthy 
of  being  gathered  up  by  the  defendant's  counsel. 
But  the  miserable  fellow  was  destined  yet  to  be 
the  *'  teterrima  causa  belli,"  and  to  stir  up  a  fracas 
between  counsel  and  judges  which  certainly  did 
the  utmost  possible  mischief,  not  only  to  the  Dane 
himself  and  to  the  defendant,  but  also  to  other 
persons  prominently  connected  with  the  cause.  It 
happened  thus :  When  Mr.  Hawkins  rested,  Dr. 
Kenealy  applied  to  be  allowed  to  produce  surre- 
butting evidence  ;  but  after  consideration  the 
judges  refused  to  grant  the  application.  There- 
upon the  Court  was  adjourned.  But  in  a  few 
minutes  Luie  was  requested  to  remain,  and  it  was 
announced  that  the  judges  were  about  to  return. 
They  did  so,  and  Mr.  Hawkins  at  once  handed  to 
them  a  letter  Avhich  he  said  he  had  just  received ; 


122  TICHBORNE. 

he  knew  nothing  more  of  the  subject  mentioned 
therein  than  what  the  letter  itself  disclosed,  and 
it  only  said  that  two  gentlemen  wished  to  identify 
Luie.  But  no  such  gentlemen  seized  this  oppor- 
tunity to  stand  forward,  and  the  Court  again  retired. 
When  they  next  came  together  after  adjournment 
Dr.  Kenealy  read  a  notice  addressed  to  him  by  Mr. 
Hawkins  stating  the  intention  of  that  gentleman 
to  produce  two  witnesses  who  would  show  Luie's 
account  of  himself  since  his  arrival  in  London  to 
be  untrue.  The  doctor  thereupon  moved  for  an 
attachment,  and  proceeded  with  much  asperity  to 
describe  the  conduct  of  the  counsel  for  the  Crown 
on  the  last  preceding  day  of  the  trial  as  unprece- 
dented, shameful,  and  scandalous ;  and  as  constitut- 
ing a  contempt  of  Court  of  the  worst  kind ;  inasmuch 
as  it  was  an  attempt,  deliberately  and  advisedly 
undertaken,  to  prejudice  the  minds  of  the  jury 
against  Luie,  to  damage  his  character  and  to  cor- 
rupt and  poison  the  current  of  justice.  The  Court 
thereupon  called  the  solicitor  who  had  made  the 
affidavit,  on  the  strength  of  which  they  had  re- 
turned after  adjournment,  and  examined  him. 
Meantime  Mr.  Whalley  rose  and  began  to  address 
the  Court.  He  was  rebuked  by  the  Chief  Justice 
for  rising  to  speak  not  wearing  his  barrister's  robes, 
and  replied  that  he  spoke  not  as  a  barrister,  but  as 
"  one  of  the  public."  In  this  capacity,  he  was 
informed,  he  had  no  business  to  speak  at  all,  and 
was  sternly  bidden  to  sit  down  and  hold  his  peace. 
Mr.  Hawkins,  being  thus  pushed  to  the  wall, 
called  the  two  witnesses  who  had  not  appeared 


TICHBORNE.  123 

according  to  promise  at  the  last  sitting.  They 
were  clerks  of  a  firm  of  insurance  brokers.  They 
said  they  knew  Luie  ;  he  had  called  at  their  office, 
professing  to  be  Captain  Sorenson  of  the  ship 
"  Girda,"  then  lying  at  Hayle  in  Cornwall ;  and  he 
had  tried  in  this  character  to  borrow  twenty 
pounds.  But  inquiry  showed  that  there  was  no 
"  Girda  "  at  Hayle,  and  the  loan  had  been  refused. 
One  of  the  clerks  dogged  him  to  a  low  coffee-house 
in  Whitechapel.  He  was  threatened  with  prose- 
cution for  trying  to  extort  money  by  false  pre- 
tences, and  promised  to  reimburse  the  expense 
which  the  firm  had  been  put  to  in  inquiring  about 
his  ship,  &c.,  provided  they  would  let  him  off.  All 
this  was  quite  inconsistent  with  Luie's  own  testi- 
mony of  his  whereabouts  and  employment  during 
the  same  period. 

Luie  then  promptl}'  took  the  stand,  swore  that 
every  thing  these  witnesses  had  deposed  to  was 
false ;  that  he  had  never  seen  either  of  them  before ; 
and  that  he  had  had  no  dealings  with  the  firm  from 
which  they  came.  Wheels  within  wheels !  Here 
arose  another  case  of  questionable  identity  !  But 
the  matter  was  not  further  gone  into  at  this  stage 
in  the  main  case ;  Luie  was  ordered  to  enter  into 
recognizances  in  the  sum  of  three  hundred  pounds, 
with  two  sureties  in  the  sum  of  one  hundred  and 
fifty  pounds  each,  to  appear  when  called  upon,  and 
in  default  of  such  bail  was  committed.  But  we 
have  by  no  means  done  with  this  individual  yet ; 
more  is  to  be  heard  of  him  soon. 

On  Tuesday,  the  second  day  of  December,  being 


124  TICHBORNE. 

the  one  hundred  and  thirty-second  working  day  of 
the  trial,  Doctor  Kenealy  began  his  closing  speech  to 
the  jury.  The  jtonciples  upon  which  this  address  was 
constructed  were  in  part  excellent,  in  part  faulty. 
The  defendant's  case  could  not  have  been  more 
ably  put ;  every  theory,  suggestion,  or  explanation, 
which  could  aid  him,  was  advanced  with  plausibility 
as  well  as  with  ingenuity.  What  may  be  described 
as  the  positive  or  affirmative  part  of  the  learned 
doctor's  argument  was  forcible,  temperate,  and  to 
an  astonishing  degree  approached  towards  being 
convincing.  He  handled  his  own  witnesses  and  his 
own  theory  of  the  case  as  he  had  presented  it  with 
consummate  tact.  It  was  not  his  fault  if  over- 
whelming evidence  established  so  many  contradic- 
tions and  absurdities  in  his  client's  story  that  he 
could  not  smooth  them  all  away.  He  showed  un- 
questionably great  cleverness  in  attempting  to  do  so. 
But  it  was  surprising  to  see  how  unevenly  he  put 
forth  his  exertions ;  for  when  he  undertook  the 
task  of  assailing  the  case,  and  refuting  the  testi- 
mony presented  by  the  Crown,  his  skill  and  dis- 
cretion seemed  totally  to  desert  him.  In  these 
portions  of  his  speech  he  seemed  to  be  without  any 
other  resource  save  simply  vituperation,  and  the 
wholesale  insinuation  of  falsehood,  corruption,  and 
perjury.  By  this  course  he  weakened  himself  ex- 
ceedingly. He  aroused  a  reactionary  sense  of 
indignation  in  his  hearers  by  his  lavish  accusations 
of  fraud  and  dishonesty  launched  against  persons 
who  had  in  their  appearance  given  no  cause  for  any 
such  suspicions.     Especially  unbecoming  did  such 


TICHBOENE.  126 

conduct  seem  in  view  of  the  fact  that  nrore  than 
one  of  his  own  witnesses  had  been  far  from  endur- 
ing satisfactorily  the  tests  of  cross-examination 
and  comparison.  Luie  and  Captain  Brown  were 
notorious  instances  of  this ;  but  there  were  other 
less  important  and  less  flagrant  examples. 

Besides  this  he  had  a  series  of  disputes  with  the 
bench,  which  not  only  exasperated  the  judges,  but 
inevitably  conveyed  to  the  jury  the  notion  that  the 
counsel  was  straining  many  points  with  the  un- 
reasonable zeal  of  a  man  who  feels  his  case  to  be 
desperate.  He  did  not  succeed  in  conveying  to  the 
jurors  the  belief  that  he  himself  was  being  over- 
ridden and  brow-beaten  by  a  partial  and  prejudiced 
bench  ;  an  impression  which  might  have  availed 
him  something  had  he  only  been  able  to  establish 
it.  But  the  panel  continually  manifested  their 
bias  against  the  barrister,  and  their  conviction  that 
in  the  numerous  clashings  he  was  the  sinning  and 
offending  party.  Beyond  this  the  speech  was  too 
diffuse ;  the  jurors  were  wearied ;  their  memories 
were  overtaxed ;  their  credulity  was  openly  prac- 
tised upon  as  if  they  had  been  dullards,  so  that 
it  was  impossible  for  them  not  sometimes  to  be 
offended;  their  tempers  were  vexed  at  what  seemed 
to  them  a  needless  prolongation  of  their  unwel- 
come confinement.  Altogether,  by  one  blunder 
and  another  in  his  conduct,  the  doctor  lost  their 
good-will,  and  was  at  last  left  with  nothing  to  rely 
upon  save  their  strict  and  rigid  sense  of  justice. 
Sheer  force  of  logic  and  preponderance  of  argu- 
ment, unaided  by  a  friendly  instinct  or  an  occult 


126  TICHBORNE. 

sympathy,  could  alone,  after  he  had  closed  his 
argument,  be  expected  to  secure  for  him  a  favor- 
able verdict. 

Influenced  by  what  unwonted  feeling  of  modesty, 
timidity,  or  self-distrust,  it  is  impossible  to  say. 
Dr.  Kenealy  opened  his  harangue  with  manner  so 
quiet  and  in  tones  so  low  that  it  was  difficult  to 
hear  him,  and  the  Chief  Justice  requested  him  to 
speak'  more  audibl3^  He  appealed  with  much 
appearance  of  fervor  to  the  Supreme  Being,  in- 
voking Him  that  He  would  be  pleased  in  this  great 
drama  to  cause  the  jury  to  be  guided  by  wisdom, 
impartiality,  and  justice.  For  himself,  if  undue 
zeal  had  occasionally  impelled  him  beyond  the 
strict  limits  of  moderation,  he  ventured  to  hope 
that  the  jurors,  bearing  in  mind  the  enormous 
difficulties  under  which  he  had  labored  in  the  con- 
duct of  the  case,  would  charitably  grant  him  their 
indulgence. 

Gold  and  power,  as  he  hoped  to  make  it  clear  to 
the  apprehension  of  his  hearers,  had  been  freely 
used  in  this  cause  for  the  purpose  of  supporting  the 
"most  monstrous  falsehood  that  had  ever  been 
concocted  in  this  country."  The  singular  and  un- 
precedented spectacle  had  been  witnessed  of  a 
cabinet  minister  in  the  witness-box.  But  that 
minister  [Mr.  Childers],  summoned  only  to  prove 
something  about  the  gold  fever  in  Australia  in 
1854,  had,  if  not  wilfully,  yet  recklessly  and  rashly 
sworn  to  what  had  since  been  shown  to  be  untrue. 
The  prosecution  might  justly  be  characterized  as 
"  the  worst,  the  wickedest,  the  blackest,  and  the 


TICHBORNE.  127 

most  profligate  prosecution"  which  had  been  in- 
stituted in  this  country  since  the  old  days  of  the 
Stuarts.  Nor,  indeed,  was  it  possible  to  say  when 
or  where  the  series  of  prosecutions  growing  out  of 
this  one  would  be  likely  to  stop.  There  was  poor 
Jean  Luie,  who,  for  the  testimony  he  had  given,  was 
only  too  likely  to  be  put  upon  his  trial  for  perjury, 
without  being  given  any  proper  opportunity  for 
defending  himself.  And  if  the  defendant  should 
be  convicted,  divers  of  his  witnesses,  such  men  as 
Mr.  Whalley  and  other  most 'excellent  gentlemen, 
could  not  possibly  escape  the  charge  of  wilful  and 
deliberate  falsification. 

Appealing  to  a  fine  old  British  prejudice  the 
doctor  made  an  energetic  assault  upon  the  Catholic 
priesthood.  That  odious  body  it  was  that  really 
instigated  this  unrelenting  prosecution.  They 
were  the  great  and  unseen  power,  hidden  behind 
the  legal  machinery,  and  guiding  and  maintaining 
all  its  elaborate  movements.  Their  design  was, 
after  securing  the  conviction  of  the  defendant  and 
so  getting  him  out  of  their  way,  to  shape  the  infant 
.heir  of  the  Tichborne  estates  —  soon  to  be  worth 
fifty  thousand  pounds  per  annum  —  to  their  own 
purposes.  They  would  thus  become  virtual  owners 
of  this  snug  property,  A  valuable  prize,  truly, 
and  worth  an  arduous  struggle  !  A  juror  inter- 
rupted to  ask  if  the  defendant  was  not  also  a  Roman 
Catholic.  Yes,  replied  the  counsel ;  but  I  fear  he 
is  a  very  bad  one.  An  American  hardly  appreciates 
the  force  of  an  appeal  of  this  kind.  Catholicism  is 
not  regarded  here  as  it  is  in  England.     The  name 


128 


TICHBOKNE. 


of  Jesuits  excites  no  popular  apprehension.  But 
Mr.  WhaEey  himself  gave  as  his  reason  for  be- 
friending the  Claimant  that  he  regarded  him  as  the 
marked  victim  of  the  priests. 

As  for  his  client  his  conduct  and  appearance 
argued  the  genuineness  of  his  pretensions.  He 
had  led  a  bad  life  ;  he  had  degraded  himself  in 
many  ways;  he  had  forgotten  much  of  his  early 
education  and  culture  ;  indeed,  he  had  very  little  of 
either  to  start  with :  but  he  was  not  the  low,  illit- 
erate, and  vulgar  brute  that  the  butcher-born 
Arthur  Orton  was,  that  bush-ranger,  horse-thief,  and 
suspected  murderer  of  "  Ballarat  Harry."  On  the 
contrary  the  defendant,  though  he  might  be  but  a 
ruin,  was  yet  the  ruin  of  a  gentleman.  His  air 
and  bearing  showed  it.  He  could  not  walk  down 
Westminster  Hall  without  manifesting  his  breed- 
ing. His  smile  was  of  "remarkable  grace  and 
sweetness,"  —  at  this  bold  assertion  an  irreverent 
burst  of  laughter  escaped  from  some  of  his  hearers ; 
but  the  doctor,  with  mucji  gravity,  said  that  he 
spoke  in  all  seriousness.  The  features  of  the  de- 
fendant might  have  been  observed,  too,  to  have 
worn  during  the  trial  a  certain  expression  of  pen- 
siveness  and  melancholy,  which  had  been  a  trait  of 
the  young  Roger. 

Throughout  the  whole  long  and  trying  affair  he 
had  manifested  the  courage,  the  spirit,  and  the 
openness  of  an  honorable  and  innocent  man.  It 
should  be  remembered  that  he  had  not  been  im- 
pelled by  a  guilty  conscience  to  run  away  from  the 
prosecution,  though  he  might  easily  have  done  so : 


TICHBORNE.  129 

he  had  had  ample  opportunity  in  his  unrestrained 
freedom.  But  he  had  fearlessly  stayed  to  face  his 
traducers,  to  let  them  do  their  worst,  and  "to  abide 
the  consequences ;  to  fight  the  fight  out  to  the  end, 
to  encounter  the  terrible  chances  of  defeat.  The 
thought  of  escaping  or  evading  his  bail  had  never 
been  entertained  by  him  for  a  moment.  And  indeed 
it  is  worthy  to  be  remembered,  that  in  this  contest 
the  defendant  had  little  to  gain  and  every  thing 
to  lose.  A  verdict  in  his  favor  could  simply  give 
him  his  liberty,  nothing  more.  It  could  hardly  even 
be  said  fully  to  restore  his  character ;  for  since,  in 
a  criminal  trial,  the  jury  are  bound  to  give  the 
defendant  the  benefit  of  a  reasonable  doubt,  an 
acquittal  is  perfectly  consistent  with  a  mere  pre- 
ponderance of  evidence  against  the  accused.  An 
acquittal  in  this  cause  would  not  have  meant 
that  the  jury  found  that  the  defendant  was 
Roger  Tichborne,  but  only  that  they  found  that 
the  Crown  had  not  proved,  so  conclusively  as  to 
remove  any  reasonable  doubt  from  their  minds, 
that  he  was  not  Roger  Tichborne.  If  the  defendant 
is  really  an  impostor  he  is  certainly  a  courageous 
one  ;  for  it  would  be  absurd  to  say  that  it  is  moral 
principle,  or  gentlemanly  honor,  or  even  loyalty  to 
those  who  have  stood  by  him  with  their  counte- 
nance and  their  money,  or  indeed  any  other  motive 
whatever  save  sheer  pluck  and  dogged  persistence, 
that  has  induced  him  to  await  the  verdict  of  the 
jury  in  this  cause.  Dr.  Kenealy  caUed  attention  also 
to  the  frank  and  liberal  manner  in  which  he  has 
exposed   himself  to   general  inspection.     He  has 

9 


180  TICHBOENE. 

not  been  jealous  of  being  seen.  On  the  contrary, 
he  has  ranged  throughout  the  kingdom,  showing 
himself  everywhere,  seeking  public  gatherings, 
courting  notice  and  observation.  He  has  feared 
no  detection,  but  has  conducted  himself  in  every 
respect  as  one  who  anticipated  corroboration  rather 
than  the  contrary,  from  being  seen  on  any  chance 
occasion  by  an  old  acquaintance. 

The  cause  had  been  conducted  by  the  prose- 
cution, as  the  doctor  continued  to  argue,  upon  a 
theory  utterly  abhorrent  to  the  English  law,  and 
indeed  to  every  sound  notion  of  justice.  For  the 
crime  had  been  taken  for  granted;  the  evidence 
for  the  defence  had  been  treated  as  if  it  were  evi- 
dence of  the  crime.  Mr.  Hawkins  had  distinctly 
requested  the  jury  to  assume  the  guilt  of  the  ac- 
cused. "  This  has  never  been  the  law  of  England," 
said  the  doctor,  "  and  in  my  opinion  it  is  the  law 
of  hell."     • 

Chief  Justice  Cockburn.  Really,  Dr.  Kenealy,  we  must 
interpose.  This  is  not  an  expression  to  use  in  a  Court  of 
Justice.  It  is  taking  a  great  deal  upon  yourself  to  say  what 
the  law  there  is!  Such  language  is  most  improper  and 
indecorous. 

Dr.  Kenealy  stood  by  his  words. 

Chief  Justice.  I  say  such  language  is  not  proper,  and  it 
shall  not  be  used.  It  is  needless,  and  must  shock  some 
ears  if  it  does  not  shock  yours. 

Kenealy  expressed  the  hope  that  his  ears  were 
as  fastidious  in  such  matters  as  those  of  any  other 
person. 


TICHBOENE.  131 

Returning  to  his  argument,  and  refraining  from 
the  use  of  the  offensive  word,  he  said  the  conduct 
of  the  case  by  the  prosecution  had  been  a  disgrace 
to  any  earthly  tribunal,  and  fit  only  for  the  tribunal 
to  which  he  had  referred. 

A  most  unjust  burden  had  been  thrown  upon 
the  defendant.  His  memory,  undermined  as  it 
was,  had  been  tested  by  the  memories  of  two  hun- 
dred witnesses.  They  came  armed  with  diaries, 
journals,  letters,  memoranda  ;  and  if  any  of  th^m 
could  remember  any  thing  which  the  defendant 
could  not,  or  if  any  of  them  stated  any  thing  in 
any  slight  particular  differently  from  his  statement, 
then  this  discrepancy  or  forgetfulness  of  his  was 
assumed  as  proof  of  his  falsehood.  If  he  remem- 
bered any  thing  correctly,  upon  the  other  hand,  it 
was  said  that  he  had  been  informed  and  "  coached  " 
by  Bogle,  the  old  servant,  or  by  the  governess, 
Miss  Braine,  or  by  Carter,  or  by  Mr.  Onslow,  or 
by  Mr.  Whalley,  or  by  other  of  his  friends  or  wit- 
nesses. He  was  impaled  on  such  a  dilemma  that 
the  things  which  he  forgot  and  the  things  which 
he  remembered  were  equally  made  to  militate 
against  him.  Evidence,  which  was  rightly  evi- 
dence in  his  favor,  was  distorted  into  evidence  of 
his  guilt,  in  gross  contravention  of  the  rules  of 
justice  and  the  established  doctrine  and  practice 
of  the  law.  Yet,  indeed,  if  the  defendant  had 
been  "  coached  "  by  these  people,  he  would  have 
avoided  many  an  error  into  which  he  had  fallen. 
The  very  glaring  imperfections  of  his  memory  were 
themselves  the  best  proofs  of  its  genuineness,  and 


132  TICHBOKNE. 

that  he  had  relied  upon  himself  iii  utter  neglect  of 
such  aid  as  he  might  have  had  from  others.  Cer- 
tainly it  was  a  tolerably  extensive  conspiracy  that 
was  thus  suggested  by  the  prosecution :  it  involved 
the  complicity  of  a  good  many  corrupt  plotters, 
liars,  and  perjurers  besides  the  Claimant.  Yet  it 
was  not  so  far-reaching  as  the  plot  which  the  de- 
fence in  its  turn  charged  against  the  Crown.  In- 
deed in  whichever  way  this  trial  might  result  a 
good  many  reputations  for  truth  and  honor  were  at 
stake.  Further,  it  was  obvious  that  the  defendant 
had  not  sought  to  obtain  any  information  concern- 
ing the  life  of  Roger  in  Paris,  or  while  quartered 
with  his  regiment  in  Ireland.  Just  such  "  coach- 
ing "  as  this  would  have  been  considered  by  an 
impostor  to  be  essential.  But  Roger,  relying  on 
himself,  had  not  made  such  an  effort. 

If  the  defendant's  story  of  his  life  of  vice  and 
dissipation  were  true,  the  jury  must  be  prepared 
for  any  act  of  folly  and  absurdity  on  his  part.  Thus 
must  they  account  for  the  sudden,  unprovoked,  and 
complete  cessation  of  his  correspondence  with  his 
family  and  friends  at  home.  This,  which  the  Chief 
Justice  regarded  as  one  of  the  most  formidable 
difficulties  of  the  defendant's  case,  was  treated  as 
the  result  of  a  weakened  brain  and  disordered 
fancy.  As  well,  said  Dr.  Kenealy,  might  it  have 
been  argued  that  Joseph  was  not  Joseph,  because 
he  sent  no  communication  out  of  Egypt  to  his 
father. 

Speaking  of  Luie,  the  doctor  said  that  he  had 
not  introduced  into  his  opening  any  mention  of 


TICHBORNE.  133 

him  or  of  the  facts  to  be  proved  by  him,  but  had 
held  him  back  so  long  and  then  had  put  him  on  the 
stand  so  suddenly,  and  so  much  to  the  surprise  of 
every  one  not  for  the  sake  of  springing  any  trap 
upon  his  opponents,  but  because  the  witness  had 
dropped  upon  the  defence  like  a  man  from  the 
clouds.  They  had  never  heard  of  him,  never 
sought  for  him,  never  received  any  intimation  of 
the  existence  of  such  a  man,  until  he  had  unex- 
pectedly presented  himself  to  them  in  the  middle 
of  the  summer.  Then  the  counsel  had  not  thought 
it  proper  to  summon  him  to  tell  his  story  until  they 
had  had  time  to  investigate  its  truth.  Hence  they 
had  withheld  him  while  Mr.  Whalley  was  hastily 
despatched  to  the  United  States  to  make  an  inves- 
tigation and  to  seek  corroboration  of  Luie's  tale. 
The  doctor  was  now  far  from  giving  up  his  witness 
in  spite  of  the  discredit  which  had  been  cast  upon 
unessential  parts  of  that  witness's  narrative.  He 
was  not  terrified  by  the  threats  and  rumors  which 
he  had  heard  uttered  concerning  him ;  he  did  not 
abandon  him  nor  an  important  word  in  all  that  he 
had  said !  Whatever  the  government  might  set  up 
concerning  his  general  morahty,  whatever  they 
might  prove  about  him  m  the  way  of  specific  sins 
which  he  had  committed,  even  should  they  show 
him  to  be  a  murderer,  the  doctor  would  yet  ask 
the  jury  to  believe  that  what  he  said  about  the 
"  Osprey "  and  the  defendant  in  1854  was  true. 
He  had  come  forward  voluntarily,  at  the  instiga- 
tion of  no  person  connected  with  defendant's  case, 
simply  to  teU  what  he  knew  in  the  matter.     The 


134  TIGHBOENE. 

unfortunate  man  himself  meanwhile  was  lying  in- 
carcerated in  HoUoway  jail,  soon  to  create  an  inde- 
pendent sensation  of  his  own,  agreeable  neither  to 
himself  nor  to  his  learned  champion  and  vindicator. 
If  he  burned  even  now  in  the  fingers  of  the  coun- 
sel who  yet  with  Spartan  heroism  endured  the  un- 
easiness with  a  hardy  unflinching  air,  he  was  soon 
to  become  such  an  intolerably  hot  coal  as  to  be 
dropped  incontinently  with  unfeigned  misery. 

It  has  been  said  that  Dr.  Kenealy  blundered 
badly  in  the  violent  character  of  the  assaults  which 
he  suffered  himself  to  make  upon  the  witnesses  and 
managers  of  the  prosecution.  To  show  that  the 
charge  was  not  groundless,  sundry  passages  occur- 
ring on  the  third  day  of  his  speech  may  be  men- 
tioned. Having  already  accused  one  or  two  of  the 
Crown  witnesses  of  having  spoken  falsely,  which 
was  as  much  as  to  say,  of  perjury,  he  dared  to  assail 
poor  Mr.  Gosford  in  extravagant  terms.  Gosford 
was  utterly  unworthy  of  credit,  he  said ;  he  was  a 
man  proved  out  of  his  own  mouth,  upon  cross-ex- 
amination, to  have  been  guilty  of  a  felony.  The 
Court  interrupted  and  said  this  statement  was  un- 
warranted by  any  thing  which  had  appeared  at  the 
trial.  Dr.  Kenealy  said  it  was  felony  for  an  em- 
ployee to  appropriate  his  master's  money  and  be 
unable  to  pay  it  back.  Justice  Mellor  said  that 
there  was  not  a  particle  of  evidence  on  which  to 
ground  this  charge  of  felony. 

Dr,  Kenealy.   I  call  it  felony. 

Chief  Justice.   You  may  call  it  felony ;  but  it  is  not. 

The  only  foundation  for  this  accusation  seems  to 


TICHBORNE.  135 

have  been  that  Gosford,  in  his  capacity  as  solicitor 
and  agent  for  certain  gentlemen  of  property,  had 
led  them  into  partially  speculative  investments 
which  had  resulted  in  loss.  In  this  sense  only  was 
he  unable  to  return  the  funds  of  his  principals. 
But  the  losers  themselves  had  never  blamed  him 
in  the  least.  Kenealy  then  referred  to  the  large 
sums  of  money  which  had  been  paid  to  some  of  the 
witnesses  called  by  the  Crown,  as  had  been  elicited 
in  his  cross-examination.  Mrs.  Hayley  was  to  have 
one  thousand  dollars ;  Mr.  Gibbes  was  to  have  six 
hundred  pounds.  Of  such  great  hire  had  the  chief 
laborers  been  thought  worthy!  He  asked  what 
sums  persons,  who  paid  such  bounties  to  bring 
their  own  witnesses,  would  not,  e  converso,  unques- 
tionably he  willing  to  pay  to  persons  who  might  be 
witnesses  for  the  defence,  in  order  to  keep  them  out 
of  the  way.  Whereupon  the  Chief  Justice  said: 
"  This  is  really  beyond  all  limits  of  propriety  and 
decency,  —  charging  persons  with  these  things 
without  a  tittle  of  evidence,  making  accusations 
by  wholesale  against  every  one !  You  suppose 
everybody  to  be  mixed  up  in  some  hideous  sys- 
tem of  corruption  and  iniquity.  .  .  .  There  is 
not  the  slightest  foundation  for  such  black  impu- 
tations." Surely  all  this  was  very  clumsy  blunder- 
ing on  the  part  of  the  doctor. 

To  preserve  something  like  continuity  in  this 
brief  abstract  of  the  proceedings,  it  is  necessary 
here  to  interrupt  the  sketch  of  Dr.  Kenealy's  argu- 
ment in  order  to  dispose  finally  of  the  Luie  episode. 
On  Friday,  December  5,  he  was  brought  into  Court, 


136  TICHBORNE. 

and  a  sort  of  trial  within  a  trial  was  had.  The 
problem  in  the  less  as  in  the  greater  proceedings 
was  one  of  identity.  But  the  question  was  much 
more  summarily  disposed  of  without  the  interven- 
tion of  a  jury  or  the  delay  of  a  defence.  Eight 
officials  from  Chatham  Convict  Prison  identified 
Luie  as  one  Lungren,  received  into  that  place  in 
1868,  under  sentence  of  seven  years  penal  servi- 
tude, and  liberated  on  a  ticket-of-leave,  March  25, 
1873.  Others  identified  him  with  Lungren,  a  Swede, 
who  was  sentenced  in  1862  at  Bristol  to  three  years 
of  penal  servitude  for  the  theft  of  a  bill  of  exchange 
for  £242  ;  and  again  he  appeared  to  have  been  sen- 
tenced at  Cardiff  in  1867,  for  obtaining  .£20  under 
false  pretences.  He  was  identified  as  a  clerk  in  the 
employ  of  merchants  at  Bristol,  from  1859  to  1861 ; 
when  he  was  sent  to  gaol  in  a  civil  suit,  and  after- 
ward to  prison  on  a  criminal  charge.  A  great 
many  witnesses  testified  to  his  having  extorted  or 
tried  to  extort  money  by  falsely  pretending  to  be*  a 
sea-captain  in  the  manner  already  narrated. 

A  policeman  from  Bristol  said  the  man  Luie  or 
Lungren  had  a  wife  and  child  living  there,  though 
not  under  the  name  of  Lungren ;  the  woman  had 
taken  the  name  of  another  man,  Hawkins.  [Much 
laughter  at  the  expense  of  the  counsel  for  the 
Crown.] 

Mr.  Hawkins.  What  was  her  maiden  name  ? 
Witness.   Miss  Sarah  Cockburn. 

[Renewed  laughter ;  this  time  at  the  expense  of 
the  Chief  Justice.] 


TICHBOENE.  137 

But  the  witness  explained  that  the  name  was 
spelled  differently,  —  Colborne  ;  both  Cockhurn  and 
Oolhorne  being  in  England  pronounced  Cohurn. 
Whereupon  the  Chief  Justice  triumphed  over  Mr. 
Hawkins.  But  that  gentleman  promptly  retaliated 
that  his  namesake  in  Bristol  also  spelled  his  name 
differently  —  with  a  ^  —  Hawkings.  So  everybody 
laughed  merrily  at  this  tiny  pleasantry,  as  if  all 
the  crimes  and  the  arguments,  and  the  great  weari- 
ness of  the  interminable  case,  were  not  resting  upon 
their  overweighted  spirits.  Then  the  wife  with 
the  amusing  alias  was  called,  and  identified  Luie 
as  her  husband,  whom  she  had  not  seen  since  1865. 
"  Did  you  recognize  him  at  once  ?  "  said  the  Chief 
Justice.  "  Rayther,  sir,"  responded  the  damsel, 
with  a  suddenness  and  emphasis  which  again  set 
the  auditory  into  roars  of  laughter. 

But  this  Luie  investigation  was  far  from  being 
marked  throughout  with  such  good  feeling  and 
jollity.  Dr.  Kenealy  gallantly  stood  by  his  witness 
in  this  hour  of  his  trouble,  and  cross-examined  the 
hostile  witnesses  with  all  his  usual  keenness,  not  to 
say  offensiveness  of  manner,  and  with  more  than 
his  usual  prolixity.  The  task  must  have  severely 
taxed  his  temper,  for  he  could  not  extract  much 
that  was  satisfactory  from  them.  Especially  must 
it  have  been  provoking  to  be  unable  to  break  down 
the  testimony  of  some  who  testified  that  Luie  or 
Lungren  had  been  at  Hull,  in  the  employ  of  a  firm 
there,  from  the  spring  of  1854  till  the  middle  of 
1855 ;  thus  covering  just  the  very  time  when  Dr. 
Kenealy  wanted  this  same  person  to   be  sailing 


138  TICHBOBNE. 

from  near  Rio  to  Melbourne,  in  the  "  Osprey," 
washing  Mr,  Tichborne,  and  giving  him  brandy  to 
keep  him  stupidly  drunk  and  quiet.  So  the  fuel  of 
his  wrath  was  well  prepared  to  blaze  up,  and  it 
was  not  long  before  the  match  was  applied,  and  a 
grand  conflagration  ensued.  Dr.  Kenealy  was  cross- 
examining  a  witness,  reiterating  questions  which 
seemed  to  be  idle  and  unimportant,  and  harass- 
ing him  apparently  to  no  good  purpose.  The  Chief 
Justice  expostulated  upon  so  needless  a  waste  of 
time.  But  Dr.  Kenealy  said  the  question  was  for 
the  jury  ;  he  must  convince  them.  Then  Justices 
Lush  and  Mellor,  and  many  of  the  jurors,  thus 
indirectly  appealed  to,  intimated  that  they  fully 
agreed  with  his  Lordship.  The  discussion  began 
to  wax  warm,  and  Kenealy  finally  so  far  forgot 
himself  as  to  say  to  the  Chief  Justice :  — 

Your  Lordship  is  perpetually  insulting  me  from  the 
bench ;  I  don't  know  why. 

Chief  Justice.  Don't,  sir,  use  that  language  to  me ;  for 
I  will  not  bear  it. 

Dr.  Kenealy.  I  consider  that  what  you  have  said,  my 
Lord,  taking  all  things  into  account  on  this  and  other  occa- 
sions, justifies  the  use  of  my  language. 

Justice  Lush.  I  think  we  should  put  an  end  to  such  a 
waste  of  time.  ... 

It  is  obvious  that  much  time  is  unnecessarily  and  use- 
lessly occupied  with  these  questions. 

Justice  Mellor.  I  am  of  the  same  opinion.  I  must  say 
that  I  regretted  to  hear  you  say  what  you  have  just  said  to 
the  Lord  Chief  Justice.  It  is  the  first  time  I  have  ever 
heard  that  a  judge  was  not  at  liberty  to  interpose  an  ob- 


TICHBORNE.  139 

servation  when  questions  are  reiterated  so  uselessly.  The 
judges  have  a  duty  to  perform,  and  are  bound  to  dis- 
charge it. 

The  Lord  Chief  Justice.  ...  It  is  the  duty  of  the 
judges  to  interpose  and  protect  the  public  against  the 
waste  of  the  public  time,  and  it  is  not  consistent  with  de- 
cency for  counsel  to  tell  a  judge  that  he  insults  him  when 
he  makes  such  an  observation, 

Mr.  Kenealy.  My  Lord,  I  must  exercise  my  own  discre- 
tion. 

The  Lord  Chief  Justice.  But,  sir,  it  is  not  discreet  nor 
decent  to  make  such  an  observation  to  a  judge. 

Mr.  Kenealy.  My  Lord,  you  have  addressed  me  in  simi- 
lar terms,  and  my  opinion  is  not  altered. 

The  Lord  Chief  Justice.  Seventeen  years  I  have  sat 
upon  the  bench,  and  I  have  never  had  an  unpleasant  word 
with  counsel. 

[The  reporters  say  that  this  remark  was  received  with 
a  murmur  of  assent  from  the  barristers  sitting  in  the  court- 
room.] 

Mr.  Kenealy.  My  Lord,  I  have  done  all  I  could  to 
avoid  it. 

Mr.  Justice  Lush.  I  cannot  help  adding  that  when  I 
first  heard  your  expression  I  was  very  much  astonished 
that  any  gentleman  of  the  bar  should  have  so  conducted 
himself.  But  I  think  the  offence  is  aggravated  when  it  is 
committed  by  a  queen's  counsel,  who  owes  a  special  duty 
of  proper  respect  to  the  Court. 

Mr.  Kenealy.  Your  Lordship  has  more  than  once  re- 
minded me  of  that. 

Mr.  Justice  Lush.  I  think  it  is  an  aggravation  of  the 
offence  when  it  is  committed  by  a  person  in  that  position. 

Mr.  Kenealy.  I  have  borne  what  no  other  counsel  has 
had  to  bear. 


140  TICHBOENE. 

The  Lord  Chief  Justice.  Because,  sir,  you  have  brought 
it  upon  yourself  by  your  own  conduct. 

Mr.  Justice  Mellor.  If  this  kind  of  conduct  should  be 
repeated  in  any  other  trials  the  administration  of  justice 
would  be  seriously  impeded.  .  .  .  The  good  relations  be- 
tween the  bench  and  the  bar  cannot  continue  to  subsist  if 
a  judge  is  to  be  treated  in  the  way  in  which  you  have 
treated  not  only  the  Lord  Chief  Justice,  but  every  other 
member  of  the  Court. 

Mr.  Kenealy.  I  have  been  treated  as  no  other  counsel 
has  ever  been  treated  in  Westminster  Hall. 

The  Lord  Chief  Justice.  Because,  sir,  you  have  brought 
it  on  yourself.  Counsel  cannot  be  allowed  to  violate  all  the 
ordinary  rules  of  the  administration  of  justice,  and  outrage 
all  the  rules  of  propi-iety  without  calling  down  upon  him- 
self the  censure  of  the  bench.  The  judges  are  bound  by 
the  duty  they  owe  to  the  administration  of  justice  to  censure 
conduct  of  that  description. 

Mr.  Kenealy.  I  would  not  complain,  had  the  censure 
been  conveyed  in  different  terms,  but  your  Lordship  has 
used  to  me  the  most  bitterly  offensive  language  that  could 
have  been  selected. 

The  judges  gave  to  this  assertion  an  indignant  contradic- 
tion. 

Mr.  Kenealy  declared  that  he  could  not  alter  his  opinion. 

The  Lord  Chief  Justice  said  he  was  sorry  for  it,  and 
desired  him  to  proceed. 

Mr.  Kenealy,  however,  sat  down  without  pursuing  his 
cross-examination  any  further. 

But  all  this  miserable  discord  and  wrangling  did 
no  manner  of  good  to  the  defendant.  The  fight 
was  one  in  which  there  was  no  chance  for  him  to 
win  a  victory.     In  addition  to  being  in  the  wrong, 


TICHBOENE.  141 

the  odds  against  Dr.  Kenealy  were  altogether  too 
great.  He  could  hardly  have  prevailed  had  he 
been  in  the  right.  Every  man's  hand  had  been 
against  him,  and  he  had  been  obliged  to  use  his 
hand  against  every  man:  —  against  the  crown 
counsel,  against  the  fierce  old  Chief  Justice  and 
the  two  associate  judges,  against  the  jurors,  against 
the  witnesses ;  nay,  even  against  the  barristers  who 
sat  idly  by  and  listened,  and  though  taking  no  part 
in  the  proceedings  yet  managed  occasionally  to 
make  their  sentiments  perceptible  in  an  indefinite 
but  unmistakable  manner.  No  wonder  that  he  did 
not  prevail.  The  end  of  the  matter  was,  that  the 
Chief  Justice  said  that  neither  he  nor  his  comrades 
on  the  bench  felt  the  slightest  hesitation  as  to  the 
course  which  they  should  pursue.  The  Solicitor 
for  the  Treasury  should  be  bound  over  to  prose- 
cute Luie  for  perjury.  Luie  himself  was  committed 
for  contempt  of  court,  in  that  he  had  been  guilty 
of  perjury  before  it.  A  few  days  later  he  was 
brought  up  at  Bow  Street,  and  sent  to  Pentonville 
to  undergo  the  remainder  of  his  sentence.  Such 
was,  for  the  time,  the  untoward  end  of  the  most 
important  witness  introduced  by  the  defence. 

But  a  grave  question  was  opened  by  this  matter, 
being  no  less  than  whether  or  not  the  defendant 
and  his  counsel  had  been  aware  of  the  nature  of 
the  evidence  which  they  had  offered.  Nor  if  this 
were  so  could  the  honor  of  Mr.  Whalley,  radical 
agitator,  reformer,  and  member  of  Parliament,  easily 
escape  uncontaminated  by  grave  suspicions.  It 
had  been  a  matter  of  strong  inference  from  parts  of 


142  TICHBOENE. 

Luie's  testimony  that  he  expected  to  be  corrobo- 
rated by  persons  who  would  come  forward  in  the 
characters  of  pilot  and  sailors  from  the  "  Osprey." 
The  Chief  Justice  himself  had  remarked  upon  this. 
Of  course  neither  the  pilot  nor  anybody  else  from 
that  phantom  ship  ever  put  in  an  appearance.  His 
Lordship  said,  that  if  indeed  Luie  had  been  induced 
to  testify  by  the  false  promise  held  out  to  him  that 
other  persons,  assuming  to  be  shipmates  of  his  were 
really  at  hand  ready  to  confirm  his  tale,  then  a  most 
scandalous  and  wicked  scheme  had  been  hatched  by 
some  person,  to  the  Court  unknown.  Proceedings 
against  him  for  perjury  were  soon  after  begun, 
when  Luie  made  some  most  startling  assertions 
upon  this  point.  He  said  that  he  had  been  delib- 
erately assured  by  the  friends  and  supporters  of 
the  defendant  that  the  pilot  and  others  from  the 
"  Osprey  "  had  been  found,  and  would  confirm  his 
narrative  ;  that  there  was  a  well-formed  conspiracy 
in  this  matter,  by  the  stipulations  of  which,  if 
the  defendant  should  ever  acquire  the  Tichborne 
estates,  he  was  pledged  to  divide  them  with  those 
who  had  been  most  zealous  and  useful  in  his  be- 
half. Among  these  Mr.  Whalley  rose  pre-eminent, 
and  was  to  have  the  lion's  share  of  the  noble 
spoil. 

This  witness  also  said  that  he  himself,  in  addi- 
tion to  being  deceived  by  these  men,  had  also  been 
most  sedulously  schooled  by  them  in  his  part.  They 
had  trained  him  in  his  testimony  with  extreme  and 
anxious  care,  and  it  was  because  he  had  learned  his 
lesson  with  indifferent  aptitude,  so  that  they  had 


TICHBORFB.  143 

not  dared  to  trust  him  earlier,  that  he  had  not  been 
put  sooner  upon  the  stand.  The  excuse  that  he 
had  been  withheld. in  order  to  give  Mr.  Whalley 
time  to  go  to  the  United  States,  and  establish  his 
veracity  and  trustworthiness,  was  all  a  falsehood. 

Luie  had  turned  out  to  be  such  a  thorough-paced 
criminal  that  nothing  was  worthy  to  be  believed 
merely  iTecause  he  said  it.  His  assertions  against 
Mr.  Whalley  and  the  real  or  supposed  confederates 
of  that  individual  were  no  more  intrinsically  worthy 
of  belief  than  were  his  assertions  in  favor  of  the 
defendant.  Yet  they  received  from  circumstances 
some  degree  of  confirmation  which  his  testimony 
in  the  Tichborne  case  wholly  lacked ;  for  it  was 
noted  that  though  Mr.  Whalley  had  professedly 
gone  to  America  in  search  of  confirmatory  evidence 
to  sustain  this  witness,  and  though  Dr.  Kenealy 
said  he  would  not  put  the  witness  on  the  stand  or 
even  mention  his  existence  till  Mr.  Whalley  had 
returned  and  reported,  yet  not  one  tittle  of  con- 
firmatory evidence  secured  by  Mr.  Whalley  had 
ever  been  produced.  Had  he  then  not  obtained 
any?  Had  he  on  the  contrary  become  satisfied 
that  the  witness  was  a  liar  and  an  impostor  ?  It 
seemed  incredible  that  he  should  not  have  reached 
this  conclusion  if  he  had  really  thoroughly  sought 
to  follow  up  such  clews  as  the  witness  said  had 
been  furnished  to  him. 

The  unfortunate  member  had  already  been  in 
well-merited  trouble  in  this  matter.  He  had  writ- 
ten a  letter  to  the  "  Tiroes,"  after  Luie's  testimony 
had  been  in  some  measure  impeached,  but  before 


144  TICHBORNE. 

it  had  been  utterly  discredited  in  which  he  had  . 
said :  "  I  consider  that  I  am  called  upon  to  state 
that  nothing  that  has  occurred  in  relation  to  this 
man  affects  my  belief  that  his  evidence  as  to  the 
'  Os])rey '  is  substantially  true."  Imprudent 
words  !  After  all  the  countless  processes  for  con- 
tempt of  court  which  had  been  issued  in  this  case, 
here  was  one  more  obvious  and  flagrant  than  any 
which  had  gone  before.  The  sin  of  prejudging  and 
criticising  in  a  cause  on  trial  could  not  have  been 
more  openly  or  deliberately  committed.  Mr. 
Whalley  was  summoned  and  appeared,  attended 
by  counsel.  He  could  not,  however,  restrain  his 
impetuosity,  and  tried  to  obtain  leave  to  speak  in 
the  matter  himself.  This  M^as  not  allowed,  nor 
probably  could  it  have  benefited  him  much  to  do 
so.  His  offence  was  too  clear,  and  he  could  no 
more  escape  the  talons  of  the  Chief  Justice  than 
he  could  have  shunned  fate  itself.  He  was  fined 
two  hundred  and  fifty  pounds,  and  ordered  to  be 
committed  to  gaol  until  payment.  He  was  hot 
and  contumacious  that  morning,  and  cried  out,  dis- 
regarding the  expostulations  of  his  counsel,  that  he 
would  never  pay.  So  he  went  to  HoUoway  Prison 
and  spent  the  night  there.  Probably  he  did  not 
like  his  quarters.  The  next  day  the  fine  was  paid, 
and  he  regained  his  liberty. 

When  the  Luie  trial  was  in  progress,  Mr. 
Whalley  made  a  desperate  effort  to  clear  him- 
self of  any  comphcity  in  the  production  of  the 
fraudulent  testimony.  His  reputation  certainly 
stood   very   much   in    need,  of   purgation.      We 


TICHBOENE.  145 

will  not  pretend  to  pass  upon  the  success  of 
his  efforts.  He  is  evidently  an  impetuous  person, 
who  must  plunge  into  hot  water  by  an  irresistible 
law  of  his  nature  like  that  which  induces  the  light- 
ning to  seek  the  same  fluid.  His  story  was,  that 
he  had  offered  to  give  to  the  Solicitor  for  the  Treas- 
ury all  the  information  at  his  disposal  concerning 
Luie,  and  that  that  gentlejnan  had  refused  to  be- 
come the  recipient  of  the  proffered  intelligence. 
He  insisted  also  upon  thrusting  before  the  reluctant 
observation  of  the  Court  the  papers  which  he  had 
in  relation  to  this  matter ;  he  declared  that  they 
were  all  that  he  had ;  that  they  covered  Luie's  in-  , 
structions  furnished  to  him  for  his  guidance  in  the 
American  investigation,  and  the  results  of  his  tour 
in  that  quest.  Even  if  he  was  innocent,  his  gross 
imprudence  and  folly  were  punished  scarcely  beyond 
his  just  deserts  in  the  suspicion  which  still  rested 
upon  him.  For  the  tribunal  was  not  sitting  to  con- 
vict or  acquit  the  good  name  of-  Mr.  Whalley ;  no 
official  approbation  could  properly  be  elicited  which 
should  send  him  forth  again  before  the  world  in 
possession  of  an  untarnished,  unquestioned,  or  un- 
questionable fair  fame. 

Much  natural  curiosity  was  felt,  after  the  pub- 
lication of  these  transactions  which  at  first  had  been 
in  part  kept  in  some  measure  private,  to  see  how 
Dr.  Kenealy  would  comport  himself  in  so  embarrass- 
ing a  quandary.  It  was  a  severe  trial  for  him,  but 
he  showed  neither  nervousness  or  despair.  He  ap- 
proached it  deliberately  and  in  due  course,  and 
reached  it  only  after  arguing  for  a  day  or  two  upon 

10 


146  TICHBOENE. 

the  testimony  concerning  the  "  Osprey,"  seeking 
to  show  from  what  the  witnesses  had  said  that 
there  was  an  "Osprey" — indeed  that  there  were 
two  "  Ospreys  "  —  at  Melbourne  in  1854  ;  that  one 
of  them  was  a  large  three-masted  vessel,  as  de- 
scribed by  his  client,  and  that  the  story  of  his  hav- 
ing been  saved  by  such  a  craft  was  not  only  possible, 
but  in  every  respect  probable.  Coming  then  at  last 
to  "  the  Luie  episode,"  he  met  it  in  the  only  sensi- 
ble way  in  which  he  could  meet  it ;  for,  after  all 
the  surmises  as  to  his  probable  conduct,  there  was 
really  only  one  course  which  he  could  adopt.  He 
acknowledged  that  he  had  been  deceived ;  he  gave 
up  his  witness  ;  he  frankly  said  that  he  could  not 
do  otherwise,  nor  did  he  wish  to  try  to  do  other- 
wise. But  he  did  seek  most  earnestly  to  clear  the 
defence  of  any  connection  with  the  abominable 
fraud.  He  declared  solemnly  that  he  himself  had 
believed  Luie  to  be  an  honest  witness  until  the  re- 
cent testimony  had  clearly  proved  the  contrary, 
for  some  medical  testimony  which  had  been  pro- 
duced he  acknowledged  to  be  conclusive  against 
the  veracity  of  the  man  ;  his  identity  with  Lungran 
must  be  considered  to  be  established  ;  the  extraor- 
dinary skill  and  daring  of  the  wretched  fellow  had 
imposed  upon  the  counsel  as  it  had  upon  others. 
Still  the  fraud  was  all  of  Luie's  own  private  and 
independent  concoction.  He  it  was  who,  alone 
and  unaided,  had  conceived  it  and  had  carried  it 
out  totally  without  the  instigation  or  privity  of  any 
person  connected  with  the  defence,  at  least  so  far  as 
the  doctor  knew.     Indeed,  no  true  and  intelligent 


TICHBORNE.  147 

friend  of  the  defendant  would  have  borne  any  part 
in  such  melancholy  folly.  It  was  even  more  likely 
to  have  been  a  keen  subterfuge  of  the  other  side  to 
throw  a  burden  of  shame  and  discredit  upon  the 
defence.  For  the  witness  had  done,  the  doctor 
feared,  a  material  and  irreparable  injury  to  his  client 
in  exciting  against  him  a  suspicion  which,  though 
wholly  unjust,  it  might  be  impossible  to  remove 
from  some  minds. 

But  it  is  not  so  easy  to  wash  one's  hands  of  pitch. 
Dr.  Ken'ealy's  own  fingers  might  be  as  clean  as  he 
declared  them  to  be,  but  the  vestiges  of  defilement 
were  not  so  readily  to  be  removed  from  the  Claim- 
ant. To  him  the  fraud  seemed  to  stick  fast.  Some 
one  asked  the  doctor  how  he  accounted  for  the  fact 
that,  if  Luie  was  an  impostor,  he  had  been  so 
readily  recognized  and  remembered  by  the  defend- 
ant. Luie  had  said  that  when  he  first  came  into 
the  presence  of  the  defendant,  that  person  had 
known  him  and  had  greeted  him  in  Spanish,  say- 
ing, "  Como  esta  Luie  ?  "  This  was,  therefore,  a 
hard  question,  but  the  doctor  had  ready  not  one 
answering  suggestion  only,  but  two,  whereof  the 
doubters  might  take  their  choice.  In  the  first 
place  the  defendant,  while  on  board  the  "  Osprey," 
never  fairly  recovered  his  clear  intelligence,  and  he 
might  easily  be  deceived,  or  fall  into  involuntary 
error  concerning  circumstances  which  then  occurred. 
Moreover,  Luie  might  resemble  the  man  who  really 
had  taken  charge  of  his  client  on  the  "  Osprey,"  and 
whom  his  client  had  thought  bore  the  similar  name 
of  Louis.      Next,  the  jury  should  remember  that 


148  TICHBORNE. 

the  only  proof  they  had  of  the  recognition  was 
Luie's  own  statement  of  the  fact.  But  Luie's 
statements  were  now  admitted  to  be  worthless ; 
wherefore  he  should  request  the  jury  to  disregard 
the  allegation  of  recognition  as  very  probably  being 
as  false  as  were  the  other  statements  coming  from 
the  same  source.  If  the  first  proposition  was  weak, 
the  second  was  altogether  ludicrous  ;  for  it  was 
certain  that  the  defendant  had  seen  Luie  and  had 
not  repudiated  him.  The  doctor  was  also  obliged 
by  the  Court  to  call  to  mind  that  Luie's  affidavit 
had  been  sworn  to  in  the  presence  of  the  defend- 
ant; also  that  his  statement  had  been  taken  so 
long  ago  as  July  7,  and  must  have  been  carefully 
considered  by  those  chiefly  concerned  therewith  in 
the  long  intervening  period.  A  juror  suggested 
that  the  meeting  between  the  defendant  and  Luie 
had  taken  place  in  the  presence  of  Mr.  Whalley. 
If  there  had  then  been  no  recognition,  what  was  to 
become  of  the  remnants  of  that  poor  gentleman's  good 
name  ?  Altogether  this  matter  left  a  very  bad  odor 
behind  it.  Nor  is  it  surprising  that,  after  an  alter- 
cation with  the  judges,  in  which  they  said  that  his 
conduct  in  respect  of  Mr.  Whalley's  testimony  had 
been  very  peculiar,  poor  Dr.  Kenealy  was  fairly 
hounded  beyond  his  patience.  In  his  despair  he 
declared  that  he  was  "  prepared  for  any  amount  of 
gullibility  and  folly  in  a  man  whose  mind  was  con- 
stituted like  that  of  the  defendant."  Nor  was  he 
surprised  that  one  of  his  farmer  friends  had  named 
a  donkey  "  Tichborne."  Really  the  name  was  not 
inappropriate.     At  this  announcement  the  defend- 


TICHBORNE.  149 

ant  seemed  to  think  that  his  counsel  had  at  last 
carried  things  rather  too  far;  he  spoke  to  the 
doctor  and  appeared  to  expostulate  indignantly; 
but  the  doctor  would  condescend  no  further  for 
the  purpose  of  smoothing  the  matter  over  than  to 
say  that,  after  all,  other  men  apparently  of  stronger 
minds  had  been  known  to  do  things  equally  foolish, 
and  to  illustrate  his  statement  by  copious  historical 
allusions. 

But  even  yet  Luie  could  no  more  be  exorcised 
than  could  the  ghost  of  Banquo.  He  was  more 
omnivorous  of  victims  than  ever  was  an  idol  of  the 
cannibals.  He  confronted  the  miserable  Kenealy 
at  every  turn,  and  at  every  turn  he  exacted  a  fresh 
sacrifice.  A  merciless  juror  was  so  unkind  as 
to  remember  that  "  Captain"  Brown,  who  had  so 
circumstantially  narrated  the  story  of  Roger  and 
the  three  captains,  all  arriving  together,  so  glori- 
ously drunk,  on  board  the  "  Bella "  at  Rio,  who 
had  also  sworn  that  an  "  Osprey  "  had  been  lying 
in  that  port,  et  permulta  alia,  had  recognized  Luie 
as  the  mate  of  that  vessel.  Luie  also  had  recog- 
nized the  "  captain."  This  unkind  juror  with  the 
untoward  memory  now  asked  the  doctor  how  he 
reconciled  these  statements  with  the  veracity  of 
Brown.  The  doctor  suggested  that  Brown  was 
mistaken  in  the  identity  of  his  man ;  but  being 
further  hard  pressed  by  the  Chief  Justice,  he 
sought  a  temporary  release  from  his  difficulties, 
by  saying  that  he  would  consider  the  evidence  of 
Captain  Brown  at  another  time.  The  prompt  ex- 
plosion of  Luie's  false  narrative  he  regarded  as. 


150  TICHBOKNE. 

upon  the  whole,  reassuring.  It  had  not  been  able 
to  stand  any  examination  at  all.  It  had  been  shat- 
tered to  fragments  almost  as  soon  as  it  was  set  up. 
This  showed  the  inevitable  fate  of  false  testimony 
in  this  cause.  But  the  remainder  of  the  points  in 
the  case  for  the  defendant  had  been  before  the 
public  for  years,  and  none  of  them  had  been  thus 
impeached  and  destroyed.  By  a  fair  inference 
and  comparison,  then,  all  these  other  averments 
must  be  regarded  as  corroborated.  If  they  had 
not  been  true  they  would  in  many  months  and 
years  have  assuredly  met  the  destruction  which 
overtook  Luie's  story  in  a  few  short  weeks.  In- 
genious if  not  convincing  ! 

It  is  impossible  not  to  be  a  little  sm-prised  after 
all  these  developments,  to  find  a  favorite  motto  of 
Dr.  Kenealy  to  be  faUus  in  uno  falsus  in  omnibus. 
He  even  had  the  hardihood  to  introduce  this  com- 
mon proverb  as  a  doctrine  of  the  law.  The  Chief 
Justice,  however,  declined  to  recognize  it  as  enti- 
tled to  such  an  honor.  But  whenever  the  learned 
counsel  could  raise  a  suspicion  of  possible  inac- 
curacy, no  matter  how  slight,  on  the  part  of  a 
witness  for  the  Crown,  he  forthwith  fell  back  upon 
this  grand  and  fundamental  principle  of  the  law 
of  falsehood,  if  not  of  the  common  law,  and  de- 
manded that  the  erring  deponent  should  be  re- 
garded as  altogether  unworthy  of  credit.  "  Does 
the  rule  apply  to  Captain  Brown  ?  "  irreverently 
queried  a  juror  one  day.  Kenealy  parried  the 
innuendo,  but  did  not  abandon  his  pet  dogma. 

In  treating  of  the  mental  weakness  of  the  de- 


TICHBORNE.  151 

fendant,  upon  which,  as  has  been  seen,  he  had 
so  freely  dilated  in  his  opening  address.  Dr.  Ke- 
nealy  ransacked  history  for  instances  of  persons 
whose  minds  had  worked  unevenly,  showing 
strength  on  some  occasions  and  extreme  weak- 
ness on  others.  Persons  who  had  led  wild  and 
irregular  lives  were  apt  to  impair  their  intellectual 
powers.  The  sorrows  and  misfortunes  of  Roger's 
early  career  had  made  him  so  far  eccentric  that 
he  was  not  to  be  judged  by  ordinary  rules.  Mr. 
Justice  Lush  interrupted  to  point  out  that  this 
was  not  an  argument  to  prove  that  this  defendant 
was  Roger,  but  that  resting  on  the  assumption  that 
he  was  Roger,  the  learned  counsel  was  seeking 
only  to  explain  and  account  for  the  extraordinary 
character  of  much  of  his  testimony.  Dr.  Kenealy 
admitted  this,  and  said  that  he  could  make  no 
argument  save  upon  the  basis  that  his  client  was 
Roger;  that  the  crime  charged  against  him  was, 
substantially,  that  he  was  not  Roger,  though  he 
had  sworn  that  he  was ;  that  hj  the  rules  of  law 
he  was  entitled  to  the  presumption  of  innocence 
until  he  should  be  proved  to  be  guilty.  Mr.  Jus- 
tice Lush  appeared  to  think  that  there  should  be 
no  presumption  in  either  way.  But  the  Chief 
Justice,  for  once,  inchned  to  take  Dr.  Kenealy's 
view.  He  added,  however,  that  there  was  cer- 
tainly a  distinction  between  eccentricity  and  men- 
dacity ;  nor  could  he  see  that  to  say  that  a  man 
was  eccentric  was  to  furnish  a  sufficient  excuse 
and  explanation  for  his  giving  false  answers 
under  oath  as  to  the  most  simple  matters  of  fact, 


152  TICHBOENE. 

such,  for  example,  as  the  place  of  his  birth,  edu- 
cation, &c. 

Where  the  genuine  Arthur  Orton  was.  Dr. 
Kenealy  did  not  pretend  to  know.  He  suggested 
that,  not  improbably,  he  was  dead,  and  that  Charles 
Orton's  knowledge  of  this  fact  was  the  reason  why 
that  person  had  not  been  put  upon  the  stand  by 
the  prosecution.  Neither  had  the  prosecution 
ventured  to  call  Arthur  Orton's  sisters,  fearing 
that  the  lack  of  any  family  resemblance  between 
them  and  the  defendant  would  be  remarked  by  the 
jury.  "  But  why  did  you  not  call  them  yourself?" 
cried  a  juror ;  and  the  Lord  Chief  Justice  also  ex- 
pressed his  own  sui*prise  that  the  counsel  for  the 
defence  had  neglected  this  step.  Dr.  Kenealy,  in 
the  absence  of  a  sound  explanation,  fell  back  upon 
his  abundant  armory  of  dark  insinuations.  "  Oh, 
gentlemen  !  "  he  exclaimed,  "  am  I  to  shut  my  eyes 
to  the  fact  that  any  amount  of  gold  is  ready  in 
this  case,  whenever  witnesses  are  wanting  ?  "  Mr. 
Justice  Lush  rebuked  him  for  casting  such  imputa- 
tions. "  After  the  experience  of  the  last  ten  days," 
he  said,  "  I  listen  to  such  aspersions  with  astonish- 
ment. We  know  nothing  to  justify  such  charges 
against  the  public  prosecutors,  but  we  do  know 
what  kind  of  witnesses  have  been  brought  here  on 
the  part  of  the  defendant."  But  Dr.  Kenealy  was 
not  to  be  driven  from  his  position ;  and  later  in  his 
argument  he  said  that  he  had  not  called  those  wit- 
nesses because  he  believed  that  the  prosecution  had 
been  in  communication  with  them,  and  had  elicited 
from  them  information  which  had  been  used  by 


TICHBORNE.  153 

Sir  John   Coleridge  in  cross-examination  at  the 
civil  trial. 

The  truth  was,  with  regard  to  these  persons, 
that  both  counsel  seem  to  have  been  equally  afraid 
of  them.  Charles  Orton  had  been  upon  both  sides 
of  the  question  since  the  first  case  had  been  insti- 
tuted. He  had  first  made  an  affidavit  that  the 
Claimant  was  not  his  brother ;  he  had  then  asserted 
that  he  had  changed  his  mind,  that  he  had  been 
under  a  mistake  when  he  gave  his  affidavit,  and 
that  this  defendant  was  his  brother.  Neither  bar- 
rister cared  to  encounter  with  such  a  two-edged 
knife  as  this.*  As  for  the  sisters,  at  the  trial  of  the 
civil  suit  they  had-  been  present  in  the  court-room, 
and  had  been  asked  to  stand  up  and  allow  the 
Claimant  to  look  at  them.  They  had  done  so,  and 
he  had  then  sworn  that  he  saw  them  for  the  first 
time.  At  that  time,  certainly,  they  were  under- 
stood very  plainly  to  be  upon  the  side  of  the  plain- 
tiff in  that  cause,  the  defendant  in  this.  This 
furnished  reason  enough  why  Mr.  Hawkins  should 
not  now  have  called  them ;  but  it  does  not  seem 
to  have  been  satisfactorily  explained  why  Dr. 
Kenealy  refrained  from  doing  so,  unless  they  also 
had  changed  their  minds.  It  was  tantalizing  that 
neither  side  caused  to  become  known  the  opinions 
of  relatives  who  stood  almost  as  near  to  Orton 
as  Lady  Tichborne  did  to  Roger.  Some  curious 
disagreements  between  persons  who  should  have 
known  so   well  of   the   subjects  of   which    they 

*  As  this  goes  to  press,  a  telegram  from  London  brings  the 
news  that  Charles  Orton  has  formally  declared  the  defendant  to 
be  his  brother. 


154  TICHBORNE. 

were  respectively  speaking  might  have  been  pro- 
duced. 

The  size  of  the  defendant  had  ah'eady  served 
Dr.  Kenealy  as  a  foundation  for  charging  him  with 
mental  dulness.  He  now  put  it  to  another  use. 
It  often  happened  that  men  who,  like  Roger,  —  as 
the  doctor  sketched  that  unfortunate  gentleman, 
—  had  given  way  to  mighty  passions,  and  had  in- 
dulged in  the  wildest  excesses,  and  in  the  extremi- 
ties of  folly,  developed  to  an  enormous  size.  In 
proof  and  illustration  of  this  assertion,  the  jury 
might  contrast  the  statue  of  Charles  Fox,  which 
they  could  see  in  Bloomsbury  Square,  with  the 
figure  of  his  client ;  and  history  told  the  same  of 
Mirabeau,  Danton,  Daniel  O'Connell.  The  Chief 
Justice  again  made  the  cause  of  the  fat  man  his 
own,  and  adduced  instances  of  very  lean  men  who 
had  led  lives  of  sin  and  dissipation. 

Speaking  to  the  personal  appearance  of  his  client, 
Dr.  Kenealy  dwelt  upon  his  "  aristocratic  "  hands 
and  feet,  so  unlike  the  broad  splay  feet  and  huge, 
ungainly  hands  which  were  attributed  to  Orton. 
Fifty-one  witnesses  had  said  that  Orton's  hands 
were  large  and  clumsy ;  defendant's  were  singu- 
larly small,  and  his  fingers  were  delicate  and  taper- 
ing. Seventy-eight  persons  had  described  his  feet 
by  the  most  various  and  uncomplimentary  epithets. 
One  witness  was  made  by  the  written  testimony 
to  say  that  Orton  had  "a  Norman  hand."  Dr. 
Kenealy  said  this  signified  a  large  hand,  whereas 
defendant's  were  plump,  but  not  large.  But  neither 
judges  nor  jurors  had  ever  heard  of  a  Norman 


TICHBORNE.  155 

hand,  and  the  meaning  of  the  phrase  was  ques- 
tioned. Dr.  Kenealy  tried  to  explain  by  telling 
the  old  story  of  WiUiam  the  Conqueror  falling, 
when  landing  in  England,  and  grasping  a  handful 
of  earth  ;  which,  he  said,  showed  that  William  had 
a  long,  large,  sinewy  hand,  whence  the  expression 
"  Norman  hand."  Great  was  the  merriment  which 
this  original  sally  of  the  learned  counsel  called 
forth.  But,  as  usual,  he  was  quite  in  earnest. 
Nineteen  out  of  twenty-seven  of  his  witnesses  had 
stated  that  Arthur  Orton's  ears  were  pierced  for 
rings,  whereas  the  defendant's  were  not.  His 
client  had  not  dyed  his  hair:  the  jury  saw  its 
natural  color,  —  it  was  of  a  rich,  dark-brown  shade, 
such  as  Sir  Roger's  had  been  described.  Of  sixty- 
six  witnesses  called  by  the  defence  to  testify  con- 
cerning the  color  of  Orton's  hair, 

35  said  it  was  remarkably  light. 


4 

)> 

)> 

» 

fair. 

6 

» 

» 

» 

flaxen. 

6 

» 

» 

» 

saudy. 

1 

if 

»> 

» 

ginger  colored. 

1 

» 

» 

» 

amber. 

3 

» 

jj 

» 

auburn. 

1 

n 

» 

» 

white. 

1 

» 

n 

j> 

light  yellow. 

26 

» 

» 

» 

light  brown. 

Of  all  these  descriptions,  not  one  could  be  forced 
to  apply  to  the  defendant's  dark  locks.  Ninety-six 
witnesses  had  said  that  Orton  was  a  "  big  large 
man,"  which  defendant  was  not.     He  was  a  "stout 


156  TICHBORNE. 

fleshy  man  ; "  but  that  was  widely  different.  Others 
had  said  that  Orton  was  a  man  of  large  build,  with 
big  limbs,  large-boned,  burly,  hulking,  broad-set, 
&c.,  &c.  Defendant  was  describable  by  none  of 
these  adjectives.  He  was  a  small-boned  man, 
though  now  overladen  with  superfluous  flesh. 
Many  had  said  that  Orton  was  coarse  and  vulgar 
in  features,  stupid  and  sullen  in  expression.  The 
doctor  appealed  to  his  auditors  to  say  that  the  de- 
fendant was  far  fi'om  being  correctly  described  by 
these  terms.  On  the  contrary,  his  expression  was 
almost  painfully  pensive  and  melancholy,  such  as 
Roger  Tichborne's  had  been  described  to  be.  He 
was,  moreover,  particularly  neat  in  his  dress  and 
precise  in  all  his  habits.  The  Crown  witnesses 
had  given  such  vague  descriptions  of  Roger,  as 
might  easily  be  fitted  to  a  very  great  number  of 
people.  Nay,  for  the  matter  of  that,  these  descrip- 
tions, for  the  most  part,  really  did  tally  with  the 
appearance  of  the  defendant,  if  reasonable  allowance 
were  made  for  the  changes  naturally  produced  by 
lapse  of  time  and  increase  of  size.  What  the  prose- 
cution called  the  "  nervous  twitching  "  of  the  de- 
fendant's eyebrows  Avas  really  nothing  else  than  the 
habit  of  raising  the  eyebrow  which  Roger  had  when 
he  became  animated  in  conversation.  As  for  the 
tattoo  marks,  only  some  eighteen  witnesses  had 
sworn  to  their  existence ;  whereas  the  defendant 
had  produced  not  less  than  thirty-five,  all  of  whom 
had  given  excellent  reasons  for  knowing  the  truth 
in  the  matter,  and  all  of  whom  had  denied  the 
presence  of  any  such  marks.     If  there  ever  had 


TICHBORNB.  157 

been  any  such  appearance,  it  must  have  been  pro- 
duced by  some  expedient  of  temporar}'-  effect,  such 
as  painting  or  the  like,  of  which  all  traces  had 
quickly  been  removed. 

Coming  finally  to  the  matter  of  the  seduction  of 
Lady  Radcliffe,  Dr.  Kenealy  expressed  his  deep  re- 
gret that  it  had  been  introduced  into  the  case  at  all. 
It  did  not  belong  there  ;  it  had  nothing  to  do  with 
the  main  issue,  which  was  simply  the  identity'  of 
the  defendant.  It  had  been  dragged  in  by  the 
prosecution,  because  the  rest  of  their  case  was  so 
weak  that  they  wanted  to  sustain  it  by  the  general 
feeling  of  sympathy  which  could  be  safely  antici- 
pated on  behalf  of  the  traduced  lady.  It  was  a 
tonic  administered  to  a  feeble  cause.  It  was  true 
that  the  Chief  Justice  had  called  it  a  crucial  test, 
and  had  said  that  the  prosecution  would  have  been 
blameworthy  had  they  omitted  to  present  it ;  but 
the  doctor  differed  from  his  Lordship,  and  ventured 
to  declare  it  to  be  wholly  extraneous.  For  after  all 
if  the  jury  should  find  that  the  defendant  Avas 
Arthur  Orton,  then  Lady  Radcliffe's  fair  fame 
would  be  as  completely  vindicated  as  it  was  possi- 
ble that  it  should  be.  But  if  they  should  find  that 
he  was  Roger  Tichborne,  it  was  not  likely  that  they 
would  disbelieve  this  portion  of  his  story.  For  him- 
self, he  confessed  that,  to  his  mind,  the  evidence  on 
this  point  appeared  so  far  conflicting  that  it  would 
justify  the  jury  in  coming  to  no  conclusion  concern- 
ing it.  If  they  believed  the  defendant  to  be  Roger 
Tichborne,  they  might  content  themselves  with 
acquitting   him,  holding   their  peace  with  regard 


158  TICHBORNE. 

to  this  subordinate  and  collateral  matter,  and  not 
deciding  it  to  be  proved  either  way.  This  result 
would  best  agree  with  his  own  private  feelings. 
But  though  admitting  that  he  occupied  this  posi- 
tion in  the  matter,  so  far  as  his  personal  sentiments 
were  concerned,  yet  the  necessities  of  his  case  com- 
pelled him  to  sustain  his  client's  veracity. 

On  the  subject  of  her  own  seduction,  he  did  not 
regard  Lady  Radcliffe  as  a  credible  witness.  He 
had  not,  for  this  reason,  chosen  himself  to  examine 
her  directly  upon  the  point ;  but  the  answers  which 
she  had  given  to  Mr.  Hawkins  were  not  entitled  to 
belief.  Not  only  was  she  fighting  for  her  reputation 
before  the  world,  for  her  fair  fame  as  a  chaste  lady, 
without  reproach  ;  but,  to  a  certain  extent,  she 
might  be  said  to  be  fighting  also  for  the  not  remote 
prospect  of  twenty-five  thousand  pounds  sterhng 
per  annum.  For  if  this  defendant's  claim  were 
thrown  out  as  bad,  there  was  only  the  one  small 
life  of  an  infant  heir  between  herself  and  the  vast 
Tichborne  estates.  The  first  question  put  to  the 
Claimant  by  Lady  Radcliffe  at  their  meeting,  after 
his  return  to  England  and  the  publication  of  his 
pretensions,  had  been :  "  When  did  we  last  meet  ?  " 
This,  said  the  doctor,  is  corroboration  of  the  tale  of 
seduction  ;  by  this  query  she  sought  to  "  disarm  " 
the  defendant,  and  to  prevail  upon  him  not  to  dis- 
close her  shame  !  But  at  this  point  the  judges  in- 
terposed, to  express  their  adherence  to  a  contrary 
inference.  The  question  was  the  most  natural  one 
which  could  have  occurred  to  the  lady,  seeking  to 
test   the   defendant's  genuineness  by  trying    his 


TICHBOKNE.  159 

memory  ;  and  was  also  a  question  such  as  it  was 
scarcely  conceivable  that  a  woman,  guilty  as  she 
was  said  to  have  been,  should  have  voluntarily  put, 
especially  in  the  presence  of  her  own  husband. 
Moreover,  the  defendant  would  naturally  have 
sought  to  answer  in  such  a  manner  as  to  show  her 
his  recollection  of  the  occasion,  without  at  the  same 
time  uttering  any  thing  to  compromise  her. 

To  show  the  difficulties  which  the  worthy  coun- 
sel had  to  contend  with  in  this  portion  of  his  case 
some  idea  of  the  extraordinary  nature  of  the  evi- 
dence of  the  defendant  should  be  given.  His 
cross-examination  by  Sir  John  Duke  Coleridge  had 
drawn  forth  such  a  series  of  inconsistencies,  inac- 
curacies, and  admissions  of  forgetfulness  that  from 
them  all  it  was  difficult  to  construct  any  plausible 
or  even  intelligible  account.  A  few  interrogatories 
and  replies  may  be  interesting  as  showing  better 
than  the  mere  language  of  description  can  do  his 
manner  of  answering  and  of  stating  facts  in  this 
matter :  — 

Sir  John  Coleridge.  How  did  you  discover  that  your 
attentions  to  Miss  Doughty  were  not  acceptable  to  Sir 
Edward  ? 

Plaintiff'.*  It  is  simply  impossible  for  me  to  answer  the 
question. 

Coleridge.   You  cannot  give  me  the  slightest  notion  ? 

Plaintiff.    No,  I  cannot. 

*  These  questions  and  answers,  it  will  be  remembered,  took 
place  in  the  ejectment  suit  in  which  the  Claimant  appeared  as 
plaintifif,  and  Sir  John  Duke  Coleridge  was  of  counsel  for  the  de- 
fence. 


160  TICHBORNE. 

Coleridge.   When  did  you  last  go  there  ? 

Plaintiff.   A  few  days  before  I  went  away. 

Coleridge.  When  did  you  last  see  Miss  Doughty  before 
you  left  England  ?     [He  left  in  February,  1853.] 

Plaintiff.   Not  for  some  weeks. 

Coleridge.  Were  your  attentions  ordinary  attentions  ?  or 
were  you  paying  your  addresses  to  her  ? 

Plaintiff.  Well  —  ordinary  attentions,  I  suppose.  .  .  . 
What  might  have  been  known  privately  to  ourselves  was 
not  known  outwardly  to  the  world. 

Coleridge.  Now  do  you  mean  the  jury  to  understand  that 
you  were  at  that  time  paying  her  attentions  with  the  motive 
of  inducing  her  to  become  your  wife  ? 

Plaintiff.   Yes. 

Coleridge.  Now,  sir,  tell  me  what  it  was  which  led  you 
to  discover  that  the  attentions  which  you  were  paying  to 
her  for  the  purpose  of  inducing  her  to  become  your  wife, 
were  displeasing  to  the  person  you  meant  to  make  your 
father-in-law,  according  to  your  own  account  ? 

Plaintiff.    I  do  not  know  that  I  can  do  that. 

Coleridge.  Had  you  any  explanation  with  her  before  you 
parted  from  her,  when  you  discovered  your  attentions  were 
displeasing  to  her  father  ? 

Plaintiff.   I  do  not  remember. 

Coleridge.   That  you  swear  ? 

Plaintiff.   That  I  swear. 

Coleridge.  Did  you  break  off  your  connection  with  her  ? 
Did  you  cease  to  pay  her  your  addresses? 

Plaintiff.   No,  I  think  it  was  the  other  way. 

Coleridge.  The  other  way !  She  ceased  to  pay  attention 
to  you !  —  Do  you  mean  that  she  broke  it  off? 

Plaintiff.   I  believe  it  was  so. 

Coleridge.   You  mean  that  she  broke  it  off? 

Plaintiff.   Yes. 


TICHBOENE.  161 

Coleridge.    Did  you  write  to  her? 

Plaintiff.   I  cannot  say ;  I  believe  I  did. 

Coleridge.   What  passed  between  you  and  Sir  Edward  ? 

Plaintiff.   I  do  not  remember  what  passed. 

Coleridge.   Did  it  produce  much  impression  on  you  ? 

Plaintiff.  Well,  really  I  cannot  say.  I  do  not  remem- 
ber how  I  felt  at  the  time. 

Coleridge.   Did  it  produce  any  impression  on  you  ? 

Plaintiff.    I  think  not. 

Coleridge.  You  think  not !  —  The  matter  did  not  go  very 
deeply  into  you  ? 

Plaintiff.  Really  I  cannot  answer  such  a  question  as 
that. 

Coleridge.  Surely  you  can  tell  me  whether  you  cared 
much  about  it  at  the  time  ?  Did  it  grieve  you  much  for  a 
time? 

Plaintiff.   Well,  I  dare  say  I  felt  it  at  the  time. 

Coleridge.    Did  it  produce  much  impression  upon  you  ? 

Plaintiff.   I  do  not  remember  what  it  did  at  that  time. 

Coming  then  to  the  matter  of  the  seduction,  a 
part  of  the  testimony  of  the  Claimant  given  in  the 
civil  suit  has  been  ah-eady  stated  (ante^  pp.  37-39). 
He  was  further  asked, — 

Coleridge.  When  did  she  tell  you  she  was  with  child  ? 

Plaintiff.  It  was  in  November,  or  before  November,  I 
think. 

Coleridge.  Where? 

Plaintiff.   At  Tichborne.     I  met  her  in  the  village. 

Coleridge.  Was  it  the  last  time  you  saw  her  ?  —  the  last 
time  you  were  at  Tichborne  ? 

Plaintiff.   It  was  one  of  the  days  I  was  hunting  there. 

Cole/idge.   Were  you  ever  at  Tichborne  after  that? 

Plaintiff.   I  believe  I  was  there. 
11 


162  TICHBORNE. 

Coleridge.   You  did  not  see  Miss  Doughty  ? 

Plaintijf.    1  do  not  think  so. 

Coleridge.   You  could  hardly  forget  that,  surely  ? 

Plaintiff.  1  tell  you,  I  don't  think  I  did  —  to  the  best 
of  my  belief. 

Coleridge.  Did  you  go  to  Tichborae  a  few  days  before 
you  went  away  ? 

Plaintiff.   I  believe  I  did. 

Coleridge.   In  November  or  December  ? 

Plaintiff.   About  that  time. 

Coleridge.  About  what  time  was  it  that  you  first  saw 
your  cousin  after  the  engagement  was  broken  off? 

Plaintiff.  About  the  latter  end  of  November  or  Decem- 
ber, I  think. 

Coleridge.    Where  ? 

Plaintiff.   At  Tichborne. 

Coleridge.   What  passed  ? 

Plaintiff.  Really,  I  do  not  recollect  —  all  these  many 
years  —  what  passed. 

Being  hard  pushed  as  to  his  memory  of  this  con- 
versation he  finally  said :  — 

It   was  merely  a  conversation  about  my   uncle.  .  .  . 
As  regarded  what  my  uncle  and  aunt  had  said  to  me. 
Coleridge.   What  said  she  ? 
Plaintiff.   I  cannot  remember  what  she  said  at  the  time. 

Coleridge.  Do  you  really  mean  to  tell  the  jury  that  this 
is  all  you  can  recollect  of  your  first  interview  with  your 
cousin  after  your  engagement  was  broken  off? 

Plaintiff.  No  !  But  what  I  should  like  to  explain  to 
both  judge  and  jury  is,  that  there  are  matters  which  I  am 


TTCHBOENE.  168 

very  reluctant  to  state  in  any  public  Court.  If  I  do  so  it 
will  be  because  T  am  compelled  to  do  so  by  the  Solicitor- 
General.  Be  pleased  to  understand,  as  I  have  already  told 
you,  that  there  are  two  parties  to  this. 

The  plaintiff  was  further  urged  to  recollect  more 
of  this  conversation,  but  reiterated  his  inability  to 
do  so.  He  was  then  asked  when  he  next  saw  his 
cousin  after  this  and  before  his  departure.  He 
replied  that  he  did  not  see  her  again.  He  was 
reminded  that  he  had  been  speaking  of  the  first 
time  he  saw  her  after  the  engagement  was  broken. 
He  said  he  was  aware  of  that.  He  was  then  in- 
duced to  say  that  he  did  not  see  her  but  once  from 
the  breaking  of  the  engagement  to  his  departure. 
Being  pressed  as  to  whether  he  did  not  see  her 
again,  he  replied,  — 

"  I  think  not,"  and  "  I  am  pretty  sure." 
Coleridge.  But  surely  you  cannot  have  forgotten  whether 
you  went  to  wish  her  good-by  ? 

Plaintiff.    Well,  I  do  not  think  I  did. 

He  could  not  remember  whether  he  ever  wrote 
to  his  uncle  Sir  Edward  or  his  aunt  Lady  Doughty, 
after  the  breaking  of  the  engagement.  Finally, 
however,  he  concluded  that  he  did  not  write  to  his 
uncle,  but  did  to  his  aunt ;  and  then  further  made 
lip  his  mind  that  he  did  not  write  to  his  aunt 
between  the  breaking  and  his  departure.  Yet  in 
fact  Roger's  correspondence  with  his  aunt  was  fre- 
quent and  confidential. 

Such  are  fair  examples  of  the  manner  in  which 
the  Claimant  answered  the  cross-interrogatories  of 


164  TICHBOKNE. 

Sir  John  Coleridge  concerning  the  relations  existing 
between  himself  and  his  cousin.  They  show  his 
astonishing  lapses  of  memory ;  but  they  do  not 
show,  or  very  imperfectly  show,  his  numerous 
contradictions  as  to  dates,  places,  and  interviews. 
These  inaccuracies  were  scattered  throughout  the 
examination  at  such  intervals  that  they  cannot  be 
brought  together  in  this  shape. 

Dr.  Kenealy,  having  read  these  answers  to  the 
jury,  jproceeded  to  comment  upon  them  in  his  cus- 
tomary vein.  They  were  not  true ;  they  were 
evasive,  confused,  fencing  answers.  But  then  the 
Claimant  was  not  a  truthful  man  ;  Roger  Tichborne 
was  a  very  bad  and  corrupted  man  and  might  well 
have  replied  in  precisely  this  manner.  How  absurd 
were  many  of  his  failures,  or  rather  his  refusals,  to 
remember !  He  must  have  remembered ;  but  he 
would  not  acknowledge  that  he  did.  He  was  gen- 
erously reluctant  to  tell  the  story  of  his  cousin's 
shame  !  But,  interposed  the  Chief  Justice,  the 
first  questions  had  reference  not  to  the  alleged 
seduction,  but  only  to  the  breaking  of  the  engage- 
ment; surely  they  might  have  been  truly  an- 
swered without  compromising  Miss  Doughty's 
reputation.  Ay,  indeed,  continued  Dr.  Kenealy, 
those  questions  might  have  been  honestly  re- 
plied to ;  but  the  plaintiff  knew  what  was  com- 
ing ;  he  knew  what  they  Avere  leading  to,  and  he 
entered  upon  his  course  of  reluctance  and  refusal 
at  once.  He  would  not  tell  the  truth  if  he  could 
help  it.  Hence  he  had  so  often  set  the  date  of 
the  event  wrong.     He  had  put  it  in  April,  in  July 


TICHBORNB.  165 

or  August ;  in  the  autumn  ;  from  some  of  his  state- 
ments calculations  would  surely  throw  it  into  June. 
He  had  said  that  Sir  Edward  broke  off  the  engage- 
ment about  the  first  of  July,  and  again  had  said 
that  this  event  occurred  perhaps  a  week  or  ten 
days  earlier.  This  would  make  it  about  June  22. 
The  prosecution  had  themselves  shown  that  he  was 
at  Tichborne,  on  leave  of  absence,  in  that  part  of 
June. 

Dr.  Kenealy  next  came  to  the  question  put  to 
the  Claimant  as  to  whether  he  had  made  no  inquiries 
as  to  the  condition  of  his  cousin  before  he  left  the 
country  and  to  his  extraordinary  reply,  • —  that  he 
had  made  "  no  direct  inquiries,  but  had  no  doubt 
that  he  must  have  spoken  of  it  to  Gosford."  "  Gen- 
tlemen," cried  the  barrister,  "let  us  hope  for  the 
honor  of  human  nature  that  he  would  not  have 
been  so  entirely  infamous  as  to  leave  the  country 
without  making  inquiries  about  the  matter." 

Lord  Chief  Justice.  It  has  always  struck  me  that  he  was 
in  this  dilemma  :  that  either  he  did  make  inquiries  about  it, 
or  he  did  not.  If  he  did  not,  then  heavy  infamy  would 
attach  to  him,  as  you  have  said.  If  he  did,  and  if  he  was 
told,  as  he  would  be,  that  there  was  not  the  slightest  ap- 
pearance of  any  thing  of  the  kind,  —  then  why  did  he  not 
ask  to  have  that  packet  given  up  to  him  ?  —  and  why  did 
he  leave  it  in  Gosford's  hands  with  the  chance  of  its  turn- 
ing up  at  any  time  to  destroy  the  reputation  of  his  cousin. 

Dr.  Kenealy.  My  Lord,  that  is  a  difficult  question  for 
me  to  answer !  —  And  I  cannot  answer  it.  I  cannot  answer 
for  the  thousand  things  this  man  has  done  and  said. 

The  counsel  then  proceeded  to  discuss  the  evi- 


166  TICHBOKNB. 

dence  of  the  witnesses  who  had  testified  to  having 
seen  the  cousins  alone  together.  This  testimony 
had  not  stood  the  test  of  investigation  very  well. 
Some  of  them  had  sworn  that  they  had  seen  the 
cousins  walking  alone  together  at  times  when  it 
was  shown  by  Roger's  letters,  and  otherwise  be- 
yond a  doubt,  that  he  was  elsewhere :  others  had 
spoken  of  times  when  Roger  and  his  cousin  were 
little  more  than  children.  Yet  as  a  general  rule 
these  witnesses  had  been  very  positive  and  accu- 
rate as  to  the  time  to  which  they  testified ;  and 
had,  in  some  instances,  even  given  reasons  to 
support  and  account  for  their  recollection. 

It  was  not  necessary,  the  doctor  said,  to  suggest 
that  there  was  any  deliberate  and  designed  seduc- 
tion. Indeed  it  may  not  have  been  a  seduction  at 
all ;  all  he  said  was,  that  his  client  thought  it  was 
a  seduction.  This  from  a  man  whose  delicacy  had 
been  shocked  at  the  mere  introduction  of  such  a 
subject  into  the  case  I  It  may  have  been  a  casual 
impulse  of  passion  between  two  young  persons 
engaged  to  be  married.  It  was  not  necessarj'-  to 
fix  the  time  and  place.  A  witness  had  seen  them 
go  into  the  grotto  alone  together. 

Chief  Justice  (interrupting).  The  defendant  swore  it 
was  at  Cheriton  Mill. 

Dr.  Kenealy.   That  meant  the  grotto. 

Chief  Justice.    The  grotto  ! 

Dr.  Kenealy.    Certainly. 

Chief  Justice.   I  have  seen  the  place. 

Dr.  Kenealy.   And  so  have  I. 

Chief  Justice.,  Having  seen  it,  I  ask  you  whether  you 
think  the  act  could  possibly  have  happened  there. 


TICHBORNE.  167 

Dr.  Kenealy.   I  did  not  see  it  in  1852. 

Chief  Justice.    But  you  have  seen  it  in  1873  ? 

Dr.  Kenealy.  We  have  seen  it  only  in  the  winter,  not 
in  the  summer. 

Chief  Justice.  But  we  can  judge  what  it  would  be  in  the 
summer. 

Dr.  Kenealy.   The  trees  were  perhaps  thicker  in  1852. 

Chief  Justice.  They  would  probably  be  thicker  now  than 
they  were  then.  When  I  saw  the  place,  I  must  say,  I  was 
never  more  astonished  in  my  life,  after  having  seen  the 
photograph  which  was  exhibited  to  us. 

Mr.  Justice  Lush.  I  also  have  seen  it,  and  I  never  sup- 
posed a  photograph  would  have  so  disguised  a  place.  There 
is  a  public  footway  alongside  the  path  called  the  grotto, 
which  is  higher  than  the  grotto,  so  as  to  overlook  it. 

[The  grotto  seems  to  have  been  nothing  else 
than  a  path,  about  a  hundred  feet  long,  shadowed 
by  trees,  having  this  public  way  upon  one  side 
and  a  public  towing-path  upon  the  other.] 

I^ord  Chief  Justice.  I  must  add  that  it  reflects  the  great- 
est discredit  on  the  man  who  concocted  that  photograph. 

[The  much  maligned  picture  had  been  taken 
by  the  direction  of  Mr.  Guildford  Onslow,  M.  P., 
a  gentleman  who  had  bet  six  hundred  pounds  on 
the  Claimant's  identity  with  Roger  Tichborne, 
soon  after  the  story  of  his  reappearance  had  be- 
come known,  and  who  had  since  figured  as  one 
of  the  most  prominent  and  least  respected  among 
his  supporters.  As  the  Chief  Justice  said,  it 
represented  the  grotto  to  be  a  regular  spelunca 
or  cave,  a  most  retired  and  private  spot ;  which, 
as  has  been  seen,  was  most  incorrect.] 


1S8  TICHBOKNE. 

Dr.  Kenealy  despairingly  exclaimed  that  he  did  not  care 
where  or  when  it  happened. 

A  Juror.  Supposing  it  happened,  how  would  it  be 
known  ? 

Chief  Justice.  Supposing  that  it  happened  in  the  grotto, 
it  would  have  been  very  well  known. 

Dr.  Kenealy.  I  repeat  that  I  fix  it  neither  in  time  nor 
place. 

Chief  Justice.  Then  what  is  to  become  of  Lady  Rad- 
cliffe  if  her  accuser  is  to  be  fixed  to  neither  time  nor 
place. 

Dr.  Kenealy.  She  swore  she  never  walked  or  rode 
with  Roger  outside  the  Park.  But  I  have  called  witnesses 
who  have  seen  her  do  so,  and  who  destroy  her  testimony  as 
to  that. 

Chief  Justice.  Do  you  suggest  then  that  because  a  young 
lady  walks  with  her  cousin  a  little  outside  of  her  father's 
park,  therefore  we  are  to  suppose  any  truth  in  the  story  of 
her  seduction  ? 

Dr.  Kenealy.  Surely  that  question  cannot  be  put  to  me 
seriously  ? 

Chief  Justice.  Why,  your  argument  is  this :  "  Your 
client,  you  say,  is  to  be  bound  to  no  circumstances  of  time 
or  place.  Then  you  are  asked  how  Lady  Radcliffe  can 
make  out  a  defence  unless  her  accuser  is  fixed  to  time  and 
place ;  and  you  answer  that  she  has  sworn  that  she  never 
walked  alone  with  her  cousin,  and  that  you  have  proved 
that  she  did." 

Dr.  Kenealy.  It  does  not  follow  because  she  did  that, 
that  seduction  occurred.  But  I  say  that  if  it  be  true  that 
she  walked  out  alone  with  Roger,  then  she  is  not  the  wit- 
ness of  truth,  and  she  is  not  to  be  believed  when  she  denies 
the  seduction. 

Chief  Justice.   He  swore  it  was  at  Cheriton  Mills. 


TICHBORNE.  169 

Dr.  Kenealy.  If  Lady  Radcliffe  is  not  a  credible  wit- 
ness, then  there  is  only  oath  against  oath.  "  False  in  one," 
false  in  all." 

Chief  Justice.  If  a  single  departure  from  truth  destroys 
the  credibility  of  a  witness,  how  are  we  to  accept  the  state- 
ments of  a  man,  to  whom  you  yourself,  his  counsel,  impute 
utter  recklessness  as  to  truth  ? 

Dr.  Kenealy.  No  doubt  there  was  a  great  deal  of  un- 
truthfulness. But  I  say  the  greater  part  of  his  evidence  is 
true.  As  to  this  matter,  if  neither  he  nor  Lady  Radcliffe 
is  worthy  of  credit,  then  nothing  is  proved,  and  a  verdict 
cannot  be  found  against  him.  I  am  satisfied  if  there  is  a 
doubt ;  it  saves  the  defendant.  But  no  servant  from  Tich- 
borne  was  called  to  prove  that  the  cousins  were  never 
together,  or  that  no  suspicious  circumstances  occurred. 

Chief  Justice.  There  was  no  need  to  do  so,  when  you 
never  suggested  that  any  thing  occurred  in  the  house. ' 

Dr.  Kenealy.    I  don't  know  where  it  was.       ' 

Chief  Justice.  Well,  but  there  sits  your  client  beneath 
you  who  must  know.  He  must  know  where  it  was.  He 
has  sworn  that  it  was  at  the  mill  at  Cheriton.  If  it  was 
not  there,  but  elsewhere,  then  when  Lady  Radcliffe  was  in 
the  box  there  sat  the  man  who  could  have  instructed  you 
as  to  the  proper  time  and  place  to  ask  her  about. 

Dr.  Kenealy.  Quite  true,  yet  there  is  the  man  who  never 
told  me  one  word  as  to  the  most  important  part  of  his  con- 
versation with  Gibbes. 

Chief  Justice.  But  if  yoii  intended  to  suggest  that  Cheri- 
ton Mill  was  not  the  place,  then  you  should  have  asked 
him  for  the  necessary  instructions  about  it. 

Dr.  Kenealy.  I  do  not  feel  myself  at  liberty  to  tell  your 
Lordships  publicly  what  I  might  say  privately  as  to  what 
I  know. 

This  retreat  of  the   tortured   counsel  into  the 


lYO  TICHBORNE. 

mystery  of  professional  secrecy  reminds  one  of 
the  manner  in  which  the  defeated  heroes  in  the 
Homeric  tales  were  so  often  saved  from  imminent 
and  utter  destruction,  by  being  suddenly  enveloped 
by  some  friendly  deity  in  an  impalpable  cloud. 
Onl}^,  since  no  god  or  goddess  intervened  in  his 
case,  Doctor  Kenealy  had  to  create  his  own  nim- 
bus. 

In  conclusion,  Dr.  Kenealy  said  that  many  things 
had  occurred  in  the  case  which  he  would  "give 
his  heart's  blood  "  to  be  able  for  ever  to  forget,  — 
things  which  had  cast  a  slur  upon  persons  whose 
character  and  fame  ought  to  be  dear  to  the  coun- 
try. He  did  not  specify  more  accurately  to  what 
things  or  to  what  persons  he  referred.  Perhaps 
it  was  to  Mr.  Childers,  the  cabinet  minister,  who 
had  testified  for  the  prosecution,  and  whose  evi- 
dence had  been  declared  by  the  learned  counsel 
to  be  either  a  falsehood,  or  a  mistake  which  under 
the  circumstances  could  have  been  scarcely  more 
creditable.  Perhaps  he  might  have  in  his  mind 
Mr.  Chichester  Fortescue,  who  had  recently  given 
to  Captain  Oates  a  government  appointment.  But 
Mr.  Fortescue  had  written  to  the  Chief  Justice  to 
say  that,  at  the  time  of  this  act  on  his  part,  he 
had  been  ignorant  that  Captain  Oates  was  a  wit- 
ness for  the  Crown ;  and  he,  therefore,  had  been 
fully  exculpated.  Possibly  Dr.  Kenealy  might 
be  covertly  assaulting  his  own  friends  Messrs. 
Whalley  and  Guildford  Onslow.  They  amply 
deserved  the  thrust,  though  not  perhaps  from  his 
hands ;  only  it  might  have  been  questioned  whether 


TICHBOENB.  171 

England  had  any  reasoni  for  holding  their  reputa- 
tions to  be  exceptionally  dear,  in  spite  of  the  fact 
that  they  had  succeeded  in  becoming  members  of^ 
the  House  of  Commons.  The  respectability  and 
intelligence  of  that  body  had  but  feebly  impreg- 
nated either  of  them. 

Thousands  and  thousands  of  persons  had  come 
to  opposing  conclusions  concerning  this  cause. 
But  the  doctor  rested  firm  in  the  belief  that  there 
was  but  one  conclusion  to  which  the  jurors  could 
possibly  come  after  hearing  the  whole  overwhelm- 
ing mass  of  his  evidence  ;  in  all  which  he  had  the 
audacity  to  say  that  there  had  been  but  one  weak 
point,  —  the  unfortunate  Luie.  Was  tliere  a  man 
in  the  country  who  believed  this  defendant  to  be 
Arthur  Orton  ?  The  universal  conviction  of  the 
people  of  England  was  the  other  way ! 

Chief  Justice.  Really  you  ought  not  to  say  that.  We 
have  nothing  to  do  with  the  belief  of  people  out  of  doors. 

Dr.  Keneuly.   I  hope  we  have. 

Chief  Justice.  Certainly  not  for  the  purpose  of  influenc- 
ing the  judges  or  jury. 

Dr.  Kenealy.  Not  for  that  object  certainly.  But  I  hop© 
I  may  be  allowed  to  express  my  own  belief  as  to  the  all 
but  universal  conviction  of  the  people  of  England.  The 
prosecution  had  staked  their  case  upon  this  man  being 
Arthur  Orton.  He  had  proved  that  he  was  not ;  and  if  not 
Orton,  who  could  he  be  but  Tichborne.  A  few  "  miserable 
hangers-on  of  the  government "  might  still  call  him  Orton, 
but  no  one  else  did  so. 

All  the  witnesses,  some  fifty  or  sixty  in  number, 
who  had  sworn  for  the  government,  as  to  the  de- 


172  TICHBORNE. 

fendant's  identity  with  Orton  and  to  the  fact  that 
there  was  no  bark-rigged  "  Osprey  "  at  Hobson's 
Bay  or  at  Melbourne  in  1854,  had  been  shown  to 
be  testifying  falsely  or  to  be  in  error.  Beyond 
this  a  conclave  of  relations  and  a  few  Carabineers 
had  sworn  that  his  client  was  not  Tichborne.  But 
the  defendant  had  held  his  own  among  gentlemen 
and  men  of  honor,  as  their  peer  and  comrade,  for 
seven  long  years,  —  a  longer  period  than  any  lie 
could  live !  Two  or  three  hundred  people  had 
sworn  in  his  behalf  on  the  question  of  identity. 
They  could  not  all  be  perjured ;  no  impostor  could 
gather  such  a  host.  But  was  it  possible  that  two 
or  three  hundred  persons  could  all  be  mistaken  as 
to  the  identity  of  this  one  man?  Such  numbers 
must  force  belief.  They  could  not  all  have  been 
deluded  or  deceived  by  the  defendant.  He  was 
not  clever  enough  to  achieve  such  a  feat. 

As  for  that  solitary  scandalous  witness,  the  dis- 
carded corner-stone,  the  incarcerated  Luie,  he  had 
deceived  the  defendant  as  he  had  deceived  thou- 
sands. The  defendant  was  in  such  a  condition 
when  he  was  rescued  that  he  remembered  nothing 
accurately,  and  the  minute  narrative  of  this  im- 
postor, tallying  in  so  many  respects  with  what  the 
defendant  did  happen  to  be  able  to  recall,  had 
completely  deluded  him. 

Lady  Radcliffe  the  defendant  had  proved  to  be  his 
cousin.  Yet  what  a  cousin  was  she,  who  had  left  him 
to  lie  in  gaol !  She  had  had  a  sweet  revenge,  no 
doubt.  But  was  she  a  woman  for  whom  a  spuri- 
ous  sympathy  should   be   invoked   and  aroused? 


TICHBORNE.  178 

There  was  his  mother,  Lady  Tichborne :  she  had 
died,  and  in  her  death  her  son's  case  had  met  with 
an  irreparable  loss.  Three  other  most  important 
witnesses  had  also  unkindly  fled  beyond  the  reach 
of  earthly  subpoenas,  leaving  only  their  memories 
to  be  vilified  by  the  counsel  for  the  prosecution. 
One  of  these  was  the  Tichborne  family  attorney, 
Hopkins ;  two  others,  Garter  and  McCann,  were  old 
military  servants  of  Roger.  They  were  a  great  loss, 
but  the  loss  of  the  Dowager  was  more  hopelessly 
irreparable.  That  mother  could  never  have  been 
mistaken  in  her  son ;  her  conviction  that  the  de- 
fendant was  her  son  was  well  known  and  had  been 
proved  to  the  jury.  Her  maternal  instinct  fur- 
nished them  with  a  trustworthy,  an  unerring  guide. 
They  must  not  for  a  moment  cease  to  bear  this 
impressive  fact  in  mind.  In  the  name  of  that  dead 
mother,  as  well  as  in  the  name  of  justice,  he  de- 
manded an  acquittal  for  Roger  Tichborne. 

He  sat  down,  and  the  reporter  says  that  there 
was  "  some  applause  at  the  back  of  the  court." 

The  closing  speech  of  Mr.  Hawkins  Avas,  as  a 
forensic  argument,  extremely  able.  More  temperate 
in  tone,  more  condensed  in  style,  than  that  of  Dr. 
Kenealy,  it  set  his  case  plainly  before  his  auditors 
in  clear  narrative  form,  and  dealt  with  the  case  of 
his  opponents  with  a  minute  and  critical  accuracy 
which  appeared  to  be  very  destructive.  But  inas- 
much as  it  would  convey  to  the  reader  no  material 
facts  or  reflections  which  have  not  been  already 
suggested,  or  which  will  not  be  contained  in  the 
charge  of  the  Chief  Justice,  not  even  an  abstract 


174  TICHBOENE. 

of  it  need  be  given.  Repetition  would  be  an  un- 
pardonable sin  in  the  story  of  so  long  a  cause. 

On  January  29, 1874,  being  the  one  hundred  and 
sixty-ninth  day  of  the  trial,  Lord  Chief  Justice 
Cockburn  began  his  charge  to  the  jury.  The  case 
had  been  a  painful  one,  he  said,  not  only  by  reason 
of  the  many  issues  involved,  but  also  by  reason  of 
the  course  which  had  been  pursued  in  the  conduct 
of  the  defence.  It  bore  hardly  upon  a  judge  to  be 
compelled,  as  had  occurred  in  this  trial,  constantly 
to  overrule  and  interrupt  the  counsel  upon  one  side 
of  the  cause,  because  a  judge  so  situated  cannot 
but  be  conscious  that  by-standers  may  conceive  him 
to  have  some  bias  or  prejudice  against  that  party  in 
the  litigation.  But,  when  point  after  point  is  badly 
taken  either  through  ignorance  of  the  law  or,  as 
would  appear  to  have  been  the  fact  in  this  case, 
through  a  desire  to  produce  an  effect  upon  the  out- 
side world  and  to  lead  the  public  to  suppose  that 
the  judge  had  treated  counsel  unfairly,  still  the 
magistrate  has  no  alternative.  He  must  do  his 
duty  and  administer  the  law. 

An  additional  and  unwonted  annoyance  had  been 
imposed  in  these  proceedings  by  the  necessity  which 
the  Court  had  been  frequently  under  of  interfering 
with  the  address  of  the  learned  counsel  to  the  jury, 
in  order  to  correct  misstatements  and  misrepresen- 
tations. When  witnesses  are  misrepresented,  evi- 
dence misstated,  facts  perverted,  —  and  all  this  not 
for  the  purpose  of  proper  argument,  but  in  order 
to  lay  a  foundation  for  foul  imputations  and  unjust 
charges  against  parties  and  witnesses,  —  when  one 


TICHBORNE.  175 

■unceasing  torrent  of  invective  and  foul  slander  is 
sent  forth  to  blacken  the  character  of  men  whose 
reputations  have  been  heretofore  without  reproach, 
then  it  is  impossible  for  judges  to  remain  silent. 
Nor  can  they,  especially  in  a  case  of  this  nature, 
await  their  closing  charge  to  the  jury  to  set  such 
matters  right,  for  long  ere  that  time  injury  equally 
irreparable  and  unjust  may  have  been  perpetrated. 
Therefore  it  was  that  the  judges  in  this  cause  had 
felt  it  to  be  their  duty  to  interpose  and  check  the 
torrent  of  unlimited  and  undisguised  abuse  in  which 
the  learned  counsel  for  the  defendant  had  seen  fit 
to  indulge. 

As  a  rule,  if  in  the  fervor  of  argument  a  counsel 
overstepped  due  bounds,  —  and  for  the  honor  of 
the  bar  of  England  it  should  be  said  that  even  this 
was  of  rare  occurrence.  —  a  word,  nay  a  hint,  from 
a  judge  was  always  sufficient  to  recall  the  gentle- 
man within  proper  and  legitimate  limits.  But  not 
so  had  the  remonstrances  which  had  come  from  the 
bench  in  this  cause  been  taken.  On  the  contrary, 
they  had  been  met  with  contumely  and  disrespect, 
with  insult,  with  covert  allusions  to  Scroggs  and  Jef- 
freys— judges  of  infamous  repute,  —  as  if  indeed  in 
days  when  such  a  spirit  as  theirs  animated  the  ad- 
ministration of  justice,  the  learned  counsel  would  not 
have  been  quickly  laid  by  the  heels  and  put  aside. 
It  was  intimated  that  we  were  interfering  with  the 
liberties  and  privileges  of  the  bar.  But  for  him- 
self and  his  colleagues,  the  Chief  Justice  indig- 
nantly repudiated  the  charge,  expressing  the  utmost 
regard  for  those  liberties  and  privileges.     The  in- 


176  TICHBORNE. 

terference  had  been  only  to  check  the  license  of 
unscrupulous  abuse,  to  correct  misstatement  and 
misrepresentation,  and  to  restrain  slander.  The 
right  to  use  such  weapons  under  cover  o£  argu- 
ment had  never  before  been  claimed  by  the  bar 
as  among  its  liberties  and  privileges. 

Here  the  living  and  the  dead  had  been  equally 
aspersed.  Never  in  the  history  of  jurisprudence  had 
there  been  a  cause  in  which  imputation  and  invective 
had  been  so  freely  used.  Every  person,  from  the 
highest  to  the  lowest,  concerned  in  a  prosecution 
instituted  by  her  Majesty's  Government,  and  con- 
ducted on  behalf  of  the  Crown,  had  been  charged 
with  being  engaged  in  a  fouL  conspiracy ;  with  hav- 
ing corrupted  witnesses  and  having  induced  the 
commission  of  perjury  by  those  who,  even  if  their 
evidence  was  erroneous,  could  be  fairly  accused  of 
nothing  worse  than  mistake.  One  man  has  been 
called  a  villain,  against  whom  there  is  no  more 
reason  for  bringing  such  a  charge  than  there  is  for 
bringing  it  against  any  of  us.  The  authorities  of 
Stonyhurst  are  accused  upon  no  kind  of  ground  at 
all,  of  designe'dly  corrupting  the  minds  of  their  stu- 
dents, and  covert  hints  are  given  at  abominations 
only  half  revealed,  but  from  which  one  recoils 
shuddering.  Yet  there  is  no  more  foundation  for 
these  imputations  than  if  they  had  been  brought 
against  the  authorities  of  Eton  or  Westminster  or 
any  other  of  the  great  schools  of  England. 

The  dead  have  been  served  in  the  same  way. 
Lady  Doughty  has  been  charged  with  hypocrisy, 
on  the  allegation  that  in  spite  of  the  fact  that  she 


TICHBOENB.  177 

had  learned  that  Roger  Tichborne  had  taken  her 
daughter's  honor,  she  had  nevertheless  shown  him 
to  the  door  with  bland  smiles  and  honeyed  words. 
Captain  Birkett,  who  perished  with  his  ship,  the 
"  Bella,"  is  now  averred  to  have  scuttled  her  for 
the  sake  of  insurance,  having  first  taken  measures 
which  he  thought  would  secure  his  own  safe  es- 
cape from  the  sinking  vessel.  Who  could  conceive 
it  possible  that  such  vile  and  slanderous  assertions 
could  be  uttered  in  a  court  of  justice  ?  Long  ago 
the  Chief  Justice  himself  had  illustrated  the  dis- 
tinction between  that  which  is  allowed  and  that 
which  is  forbidden  in  advocacy  —  between  the  fas 
and  the  nefas  of  advocacy  —  by  the  comparison 
of  the  sword  of  the  warrior  and  the  dagger  of  the 
assassin.  The  coimsel  for  the  defence  had  had  the 
singular  audacity  to  refer  to  this  and  to  liken  the 
conduct  of  the  prosecution  to  the  murderer's  dag- 
ger. It  seemed,  said  his  Lordship,  as  though  the 
learned  counsel  paraded  that  sentiment  merely  for 
the  purpose  of  mockery,  so  utterly  and  entirely  did 
he  disregard  it.  The  liberty  of  the  bar,  until  this 
time,  continued  the  Chief  Justice,  I  had  thought 
incapable  of  being  abused ;  but  I  have  now  seen 
and  heard  it  abused.  I  think  the  proper  correction 
for  it  is  censure  from  the  bench,  —  censure  which 
I  believe  will  meet,  as  certainly  it  deserves  to  meet, 
with  the  universal  concurrence  of  the  bar  of  Eng- 
land. 

With  these  words  the  venerable  judge  brought 
to  a  close  the  longest,  severest,  and  best  merited 
rebuke   ever   administered  from  the   bench  to   a 

12 


178  TICHBORNE. 

member  of  the  bar.  Powerful  and  scathing  as  it 
was,  it  was  also  dignified  and  deliberate.  It  was 
free  from  exaggeration  and  unmarked  by  any  thing 
like  personal  resentment.  The  gladiatorial  element, 
which  is  strong  in  his  Lordship's  nature,  was  kept 
in  strict  repression,  and  all  the  really  imposing 
force  of  intellect  and  character  which  belong  to 
hira,  appeared  at  their  best.  Dr.  Kenealy  had 
deserved  every  word  of  the  stern  chastisement 
which  he  received ;  it  was  properly  delivered  at 
this  time  and  in  this  manner,  —  indeed  it  could 
not  have  been  delivered  in  any  other  way.  It  was 
not  mingled  with  the  summing  up  of  the  c'ase,  but 
was  made  strictly  personal  towards  the  counsel,  so 
that  no  prejudice  against  the  defendant  or  his  cause 
could  be  excited  by  it  in  the  mind  of  an  intelligent 
juror,  save  indeed  such  suspicion  and  prejudice  as 
alwaj'-s  is  aroused  against  a  case  which  seems  to 
require  to  be  conducted  in  so  singular  and  repre- 
hensible a  manner.  If,  however,  any  such  feeling 
as  that  existed  it  was  the  fault  of  Dr.  Kenealy, 
not  of  the  Chief  Justice.  When  he  closed  this 
portion  of  his  remarks,  there  was,  says  the  re- 
porter, "  suppressed  applause  ;  "  the  barristers  who 
thronged  the  court-room  appeared  fully  to  sustain 
his  Lordship. 

Coming,  then,  to  the  consideration  of  the  case 
itself,  the  Chief  Justice  laid  down  the  broad  funda- 
mental principles  which  it  behoved  the  jury  to  bear 
in  mind.  The  first  question  was.  Is  the  defendant 
Roger  Tichborne  ?  If  he  is  not  Roger  Tichborne, 
then  the  second  question  is.  Is  he  Arthur  Orton  ? 


TICHBORNE.  179 

It  does  not  follow  that  because  he  is  not  Tichborne 
therefore  he  is  Orton.  A  third  substantial  and 
independent  issue  is,  Whether  or  not  he  committed 
pel  jury  in  swearing  that  he  seduced  Miss  Kate 
Doughty.  Though  he  may  be  Roger  Tichborne, 
he  may  yet  have  sworn  falsely  in  this  matter.  For 
being  hard  pushed  as  to  the  contents  of  the  sealed 
packet,  having  really  forgotten  them,  and  thinking 
that  it  had  been  destroyed  and  that  true  knowl- 
edge of  its  contents  was  unobtainable,  it  is  con- 
ceivable that  he  may  have  falsel}'^  concocted  this 
tale  of  seduction. 

The  defendant's  counsel  had  boldly  challenged 
the  verdict  of  the  jury,  not  merely  for  the  purpose 
of  acquitting  his  client,  but  for  the  purpose  of  en- 
suring to  him  the  restoration  of  his  estates.  "  If 
you,  by  your  verdict,  should  acquit  him,"  said  Dr. 
Kenealy,  "  such  restoration  must  follow  as  a  neces- 
sary consequence.  The  people  of  England  will 
rise  with  unanimous  fervor,  and  they  will  find  the 
means  to  enable  him  immediately  to  recover  the 
estates  of  which  he  has  been  dispossessed."  But, 
said  the  Chief  Justice,  the  verdict  in  this  case 
brings  after  it  no  such  consequence.  In  the  civil 
case  the  presumption  was  very  properly  against 
the  man  who  came  and  sought  to  oust  those  who 
had  long  held  undisputed  possession.  But  in  this 
criminal  cause  the  position  of  the  defendant  is  very 
different.  He  is  charged  with  attempting  to  gain 
possession  of  what  is  not  his  own  by  fraud  and 
perjury :  and  now  the  burden  of  proof  is  shifted. 
It  is  for  the   prosecution  to  prove  the  perjury, 


180  TICHBORNE. 

which  they  charge,  beyond  all  reasonable  doubt. 
The  question,  therefore,  is  not  so  much  whether  the 
defendant  is  Roger  Tichborne  as  it  is  whether  the 
Crown  have  proved  that  he  is  not  that  person. 

The  question  is  one  of  identity,  —  a  question  of 
the  most  difficult  kind  to  prove.  The  Chief  Justice 
then  proceeded  to  set  forth  and  to  illustrate  by 
some  pertinent  allusions  the  extreme  doubt  and 
uncertainty  attendant  upon  issues  of  this  sort.  In 
ordinary  cases,  as  he  abundantly  showed,  evidence 
of  identity  is  calculated  to  mislead  and  embarrass. 
How  much  more  so,.then,  in  a  case  like  this,  a  case 
of  double  the  usual  complications  to  start  with,  — 
for  the  identity  of  two  persons  was  concerned  in- 
stead of  only  one,  —  and  growing  steadil}^  more 
labyrinthine  in  its  developments.  Four  separate 
bodies  of  witnesses  appeared,  and  neither  of  the 
four  was  inconsiderable  in  point  of  numbers.  There 
were  first  the  persons  who  knew  Roger  Tichborne, 
and  who  were  divided  into  two  sets,  —  those  who 
swore  that  defendant  was  Roger,  and  those  who 
swore  that  he  was  not  Roger.  Then  there  were 
the  witnesses  who  knew  Arthur  Orton,  and  they 
likewise  were  divided  into  the  body  of  those  who 
swore  that  the  defendant  was  Orton,  and  the  body 
of  those  who  swore  that  the  defendant  was  not 
Orton. 

Fortunately  it  is  not  necessary  to  decide  the 
case  by 'deciding  to  adopt  arbitrarily  the  opinion 
of  any  one  of  these  four  adverse  bodies.  For 
besides  the  expressions  of  opinions,  there  is  a  mass 
of  facts  in  the  case  which  may   serve   to   guide 


TICHBORNE.  181 

the  jury  to  a  right  conclusion.  The  life  of  Roger 
Tichborne  has  been  portrayed  in  a  manner  which 
it  is  hard  to  think  can  mislead.  This  will  have  to 
be  compared  with  the  knowledge  and  recollections 
of  the  defendant.  But  beyond  this,  the  jury  had 
that  to  which  his  Lordship  begged  to  direct  their 
most  vigilant  and  anxious  attention.  They  had 
before  them  the  conduct  of  the  defendant ;  most 
of  it  admitted,  and  thus  removed  beyond  the  region 
of  doubt.  This  must  be  examined,  with  the  view 
to  seeing  how  far  it  might  seem  to  be  compatible 
or  reconcilable  with  his  being  Roger  Tichborne. 
"  The  facts  of  Roger  Tichborne's  life,  and  the  facts 
which  enable  us  to  judge  of  his  character  and  con- 
duct, his  views  and  intentions,  upon  the  one  hand, 
and  upon  the  other  hand  the  conduct  of  the  de- 
fendant when  he  comes  forward  and  asserts  him- 
self to  be  Roger  Tichborne,  are,  to  my  mind,  that 
upon  which  you  will  have  eventually  to  base  your 
decision,  and  determine  for  yourselves  the  great 
issue  involved  in  this  inquiry." 

The  first  thing,  then,  is  to  familiarize  ourselves 
with  the  life  of  the  real  Roger  Tichborne  during 
the  period  of  his  known  existence,  so  far  as  we 
can,  and  to  consider  the  various  circumstances  of 
that  life, — personal,  intellectual,  moral,  social;  all 
that  we  have  to  make  the  sum  and  substance  of 
the  individual  man.  Fortunately  the  means  for 
doing  this  are  great. 

One  man  may  closely  resemble  another  man 
physically,  otherwise  imposture  of  the  kind  here 
charged  would  be  impossible ;  "  hut  no  two  men  were 


182  TICHBOENE. 

ever  alike  within.''^  The  defendant,  it  must  reason- 
ably be  supposed,  resembles  in  some  respects  in 
his  person  both  Roger  Tichborne  and  Arthur 
Orton.  The  evidence  forced  one  to  this  conclusion. 
Indeed,  said  his  Lordship,  I  have  been  more  than 
once  struck  with  the  similarity,  almost  rising  to 
identity,  between  the  descriptions  given  by  some 
witnesses  of  Roger,  and  the  descriptions  given  ^y 
other  witnesses  of  Orton.  But  if  a  person  appears, 
claiming  to  be  a  certain  man,  it  is  fair  and  neces- 
sary, in  testing  the  truth  of  the  claim,  to  ask 
whether  he  knows  what  has  passed  in  the  mind 
of  the  man  he  claims  to  be. 

Hence  no  better  test  of  the  defendant's  identity 
could  be  furnished  than  that  deducible  from  his 
examination  concerning  his  recollection  of  events 
known  to  have  occurred  in  the  life  of  the  real  Sir 
Roger.  But  the  demands  made  against  him  in  this 
matter  must  not  be  too  strict.  Trifling  circum- 
stances may  well  be  forgotten  altogether,  or  imper- 
fectly or  incorrectly  remembered.  What  impresses 
itself  upon  one  memory  will  not  impress  itself  upon 
another.  Different  parts,  different  aspects,  of  the 
same  transaction  will  remain  in  the  minds  of  dif- 
ferent persons.  Half  a  dozen  may  remember  what 
a  seventh  will  forget.  Yet  there  are  things  which 
a  sane  man  cannot  forget,  and  of  which  you  are 
entitled  to  require  that  a  man  should  display  some 
knowledge.  Though  here,  again,  it  must  be  ac- 
knowledged, that  things  of  importance  sometimes 
pass  away,  in  whole  or  in  part,  from  the  mind. 
But  if  you  find  a  multitude  of  things  such  as  it 


TICHBOENE.  183 

seems  that  a  man  cannot  forget  all  passing  away, 
it  is  a  weighty  matter. 

Nor  should  an  opposite  error  be  fallen  into  of 
believing  the  genuineness  of  the  claim  because  the 
claimant  remembers  some  apparently  insignificant 
things.  These  may  be  acquired.  Indeed  some 
^uch  naturally  would  be  acquired.  For  no  man 
will  come  forward  with  such  a  claim  without  some 
means  of  asserting  it.  He  will  have  found  out 
something  about  the  man  he  is  declaring  himself 
to  be,  either  from  confederates  or  otherwise  ;  and 
amid  the  information  he  collects  will  be  small  de- 
tails and  slight  facts. 

From  this  general  introduction  his  Lordship 
advanced  to  the  summing  up  of  the  facts  in  the 
case.  Unfortunately  want  of  space  will  prevent 
the  insertion  here  of  even  a  tolerably  full  outline 
of  a  charge  which  for  clearness,  precision,  force, 
and  exhaustiveness,  probably  exceeds  any  charge 
ever  made  to  a  jury.  It  was  indeed  a  magnificent 
performance  of  an  immense  task.  It  is  possible 
only  to  select  such  occasional  passages  as  will 
supply  points  which  have  not  been  so  well  set 
fortli  in  the  preceding  narrative,  or  which  are 
otherwise  interesting.  To  begin  at  the  very  begin- 
ning, the  Chief  Justice  reminded  the  jurors  that 
the  "  ancestors  of  Roger  Tichborne  had  held  the 
broad  lands  of  Tichborne  from  a  period  anterior  to 
the  Norman  Conquest."  They  had  for  the  most 
part,  though  not  uniformly,  been  of  the  Roman 
Catholic  faith.  But  none  were  pointed  out  who 
had  exceedingly  distinguished  themselves  in  his- 


184  TICHBOENE. 

tory.  Roger  Charles  was  born  January  5,  1829. 
His  mother  was  a  French  lady,  the  illegitimate 
child  of  Mr.  Henry  Seymour  of  Knoyle,  but  belong- 
ing to  the  great  French  family  of  Bourbon-Conti. 

But  her  fine  French  blood  did  not  propitiate  for 
her  the  good  opinion  of  the  Chief  Justice.  He 
paints  her  as  ill-educated,  narrow-minded,  selfish 
in  her  fondness  for  her  son,  Roger,  —  whom  she 
wished  to  bring  up  in  an  unworthy  and  ignorant 
manner, — ill-tempered,  a  source  of  misery  to  her 
husband  and  justly  odious  to  all  the  Tichborne  con- 
nection. Indeed  her  husband,  in  a  very  long  and 
complaining  letter  to  his  father-in-law,  gives  this 
not  pleasing  sketch  of  his  wife :  — 

"  You  would  bless  yourself  if  you  were  to  see  the  figure 
Henriette  makes  of  herself  in  a  morning,  generally  till  be- 
tween two  and  three  o'clock.  It  consists  of  an  old  plaid 
dressing-gown,  extremely  dirty  and  with  several  holes  burnt 
in  it,  no  washing  or  combing,  a  night-cap,  which  is  frequently 
very  dirty,  and  a  silk  handkerchief  tied  over  it.  In  this 
disgusting  costume  she  came  to  breakfast  one  morning  when 
my  brother  Robert  was  with  me.  So  different  is  this  to  our 
ideas  of  propriety  and  cleanliness,  that  I  felt  quite  humili- 
ated and  ashamed.  She  does  not  very  often  wear  the  gowns 
you  had  the  kindness  to  give  her,  her  favorite  dress  being 
an  old  red  gown,  not  remarkably  clean,  and  which  is  my 
aversion.  What  she  does  with  the  three  hundred  francs 
which  I  pay  her  regularly  every  month  is  to  me  a  mystery, 
but  it  is  perfectly  scandalous  on  her  part  to  go  about  such  a 
figure.  Friday ;  I  began  this  yesterday,  but  was  too  fa- 
tigued to  finish  it.  My  brother  Robert  intended  remaining 
a  fortnight  with  me,  but  was  completely  driven  away  by 
the  brutal  treatment  he  experienced  from  my  wife,  and 
quitted  Paris  last  Tuesday." 


TICHBORNE.  185 

Roger  also  frequently  speaks  of  his  mother's 
"  fretting  and  fuming "  and  of  the  unhappy  life 
she  led  his  father.  Once  he  is  found  saying  that 
his  mother  makes  his  father's  home  a  "  hell  "  for 
him. 

It  was  by  something  little  short  of  a  ruse  that 
the  poor  father  was  able  to  get  his  son  out  of 
the  custody,  so  to  speak,  of  this  doting  but  ill- 
advised  mother,  and  to  put  him  to  school  in  Eng- 
land, at  Stonyhurst.  This  was  not  accomplished 
till  1845.  Prior  to  that  time  the  boy  had  lived  in 
Paris,  with  his  parents.  But  the  defendant  had 
forgotten  their  residences  and  the  names  of  the 
streets  with  which,  to  his  sixteenth  year,  he  had 
been  familiar  I  Then  he  was  taken  over  nominally 
to  attend  the  funeral  of  a  relative  who  opportunely 
died  at  this  time,  and  once  in  England  his  father 
succeeded  in  prolonging  his  stay  and  continuing 
his  education  there. 

In  his  letters  from  Stonyhurst  the  lad  makes 
friendly  inquiries  after  some  of  his  old  tutors,  the 
very  names  of  whom  conveyed  no  idea  to  this  de- 
fendant. At  first  he  wrote  in  French,  but  after- 
ward in  English.  Though  the  Chief  Justice 
pointed  out  French  idioms  in  his  English  letters, 
showing  that  he  seemed  to  think  in  French  and  to 
translate,  as  it  were,  his  ideas  into  English.  His 
letters  were  read  at  great  length.  They  cannot 
be  given  here ;  but  though  nowise  remarkable 
they  were  in  every  respect  the  productions  of  an 
intelligent  gentleman,  generally  free  from  any 
thing  in   the    nature   of  awkwardness  or  inaccu- 


186  TICHBORNE. 

racy,  save  only  the  occasional  Gallicisms,  and 
not  much  more  deficient  in  the  matter  than  in 
the  manner.  They  contain  occasional  historical 
and  literary  references,  and  detail  a  life  in  which 
study  seems  to  have  been  by  no  means  wholly 
neglected.  They  show  a  lad  evidently  subject  to 
fits  of  despondency  and  generally  self-distrustful, 
but  capable  of  being  very  resolute  and  persist- 
ent, of  taking  an  independent  course  of  action 
and  of  adhering  to  it  resolutely  after  he  had  once 
determined  upon  it.  The  replies  from  friends  and 
members  of  the  family  are  constantly  expressive 
not  onJy  of  tenderness  and  affection  but  even  of 
respect. 

While  upon  this  subject  of  the  letters  it  is  proper 
to  remark  the  very  singular  error  of  spelling  major 
with  a  ^,  thus  "  magor  "  committed  once  by  Roger, 
and  also  noticeable  in  the  letters  of  this  defendant. 
Defendant  also  wrote  "  has "  for  "  as,"  and  the 
same  odd  blunder  occurred  twice  in  Roger's  corre- 
spondence. 

Of  the  whole  school-life  the  defendant  had  been 
profoundly  ignorant.  He  did  not  remember  where 
he  passed  his  long  summer  vacations,  a  lapse  of 
memory  which  seemed  most  strange.  He  did  not 
remember  more  than  one  or  two  of  his  fellow- 
pupils.  He  could  not  remember  that  he  had 
studied  Latin  and  Greek,  and  did  not  know  that  they 
were  different.  He  had  never  heard  of  Julius 
Csesar.  Yet  Roger  had  read  the  first  book  of 
Caesar's  Commentaries.  And,  said  the  Chief  Jus- 
tice, "  the  man  who  laid  the  foundations  of  the 


TICHBOENE.  187 

greatest  empire  which  ever  overshadowed  and 
ruled  the  world  was  not  altogether  beyond  the 
range  of  Roger  Tichborne's  ideas."  Roger  went 
through  Euclid,  though  he  stumbled  on  the  Pons 
Asinorum.  But  the  defendant  did  not  know  what 
mathematics'  meant,  and  was  even  oblivious  of  so 
much  as  the  proverbial  name  of  Euclid.  Roger 
attended  a  course  of  chemical  lectures.  But  the 
defendant  confounded  a  science  "  which  almost  half 
solves  the  mysteries  of  creation  with  the  business 
of  a  man  who  compounds  chemicals  and  prepares 
medical  prescriptions  !  " 

The  counsel  for  the  defence  said  that  Roger 
learned  nothing  at  Stonyhurst;  that  the  Jesuits 
taught  nothing,  and  did  not  wish  their  youths  to 
grow  up  in  morality,  virtue,  and  honor. 

"  I  am  no  friend  of  the  Jesuit  Order,"  said  his  Lord- 
ship. "  I  believe  that  their  principles  and  their  purposes 
are  inconsistent  with  the  freedom,  moral,  intellectual,  and 
religious,  of  the  human  mind.  But  to  say  that  this  order, 
which,  whatever  may  be  its  merits  or  demerits,  has  done  so 
much  for  the  furtherance  of  education,  and  for  which  liter- 
ary men  ought  to  feel  grateful  to  it,  —  to  say  that  this  order 
would  use  the  opportunity  of  demoralizing  the  youth  com- 
mitted to  its  charge,  and  that  it  would  do  so  for  the  purpose 
of  those  abominations  to  which  the  learned  counsel  referred, 
is  in  my  mind  one  of  the  most  hateful,  most  unfounded, 
most  abominable,  and  most  fearful  accusations  that  ever 
was  brought  before  against  a  body  of  men.  Moreover, 
there  is  not  the  slightest  shadow  of  a  foundation  for  it.  All 
that  the  learned  counsel  can  point  to  is  a  foolish  habit  they 
had  of  mutilating  the  plays  which  were  acted  in  the  col- 


188  TICHBORNE. 

lege.  They  omitted  some  scenes,  and  by  some  hocus  pocus 
converted  the  relations  between  men  and  women  into  rela- 
tions of  a  different  kind.  Because  there  may  have  been 
left  in  some  of  these  plays  a  passage  which  the  fathers  in 
their  fastidiousness  or  sickly  sentimentality  thought  a  little 
too  strong  for  the  ears  of  some  delicate  young  lady,  because 
something  of  that  sort  dropped  from  the  lips  of  the  Rev. 
Father  Fitz-Simon,  the  learned  counsel  asks  you  to  believe 
that  these  dramas  were  converted  into  something  of  a  totally 
different  character,  and  of  a  nature  too  terrible  to  contem- 
plate. I  never  heard  of  such  an  accusation  before,  and  I 
trust  to  God  I  never  shall  hear  such  another." 

When  it  was  finally  settled  that  Roger  should 
leave  Stonyhurst  and  «nter  the  army,  he  made  a 
personal  application  for  a  commission  to  Lord  Fitz- 
roy  Somerset.  The  document  being  afterward  long 
in  coming,  he  ventured  to  take  what  the  Chief 
Justice  remarked  upon  as  a  bold  and  striking  step, 
and  himself  wrote  directly  to  that  distinguished 
nobleman,  seeking  to  hasten  matters.  The  whole 
transaction  of  this  personal  dealing  with  his  Lord- 
ship caused  much  interest  and  gratification  to 
Roger ;  yet  the  defendant  had  forgotten  the  very 
name  and  existence  of  any  such  individual. 

In  preparing  for  his  examination  he  studied 
diligently  in  mathematics,  his  weakest  point,  at 
Gosford's  office,  working  out  great  numbers  of 
problems  there. 

In  June,  1849,  he  was  named  a  cornet  in  the 
Sixth  Dragoon  Guards,  and^  was  soon  after  duly 
gazetted  and  joined  the  regiment  in  Ireland. 

It  was  about  this  time  that  Mr.  Seymour  died. 


TICHBOKNE.  189 

Roger  went  to  see  him  just  before  leaving  for  Ire- 
land. The  old  gentleman  was  evidently  near  to 
his  end,  and  he  had  been  as  kind  as  a  father  to 
Roger.  There  was  much  to  impress  this  parting 
scene  upon  the  young  man's  memory.  The  de- 
fendant, however,  had  so  utterly  forgotten  the 
circumstance  as  to  say  that  it  occurred  at  Knoyle, 
whereas,  in  fact,  it  occurred  at  Bath. 

The  defendant  was  extremely  ignorant  concern- 
ing the  business  affairs  of  the  family.  His  counsel 
said  it  was  because  in  all  such  matters  he  had  sub- 
mitted blindly  and  ignorantly  to  be  guided  by  Gos- 
ford.  What  with  charges  and  entails,  life-interests 
and  remainders,  the  estates  were  in  a  very  com- 
phcated  condition,  and  a  scheme  of  much  im- 
portance concerning  them  had  been  arranged  in 
the  family,  to  be  carried  into  execution  so  soon  as 
Roger  should  come  of  age.  But  at  that  time,  when 
appealed  to  for  his  co-operation,  which  was  indis- 
pensable, he  refused  to  give  his  assent.  He  had 
other  plans  of  his  own,  well  matured  and  upon 
which  he  was  obstinately  bent.  The  discussion 
wliich  followed  was  long  and  warm.  Roger,  how- 
ever, held  the  key  to  the  situation  and  finally  pre- 
vailed. His  numerous  letters  relating  to  this  affair 
evinced  a  complete  mastery  of  all  the  details,  and  a 
clear-headed  understanding  of  his  own  powers  in 
the  matter,  and  of  his  own  wishes.  The  Chief 
Justice  said  it  would  be  for  the  jury  to  say  whether 
so  complete  a  forgetfulness  as  had  been  shown  by 
the  defendant  in  respect  of  all  these  matters  could 
reasonably  be  expected  to  occur.     Especially  with 


190  TICHBORNE. 

regard  to  the  Upton  property  Roger  had  the  plan 
of  making  it  the  seat  of  a  second  family,  an  off- 
shoot from  the  main  stem,  either  by  instating  there 
his  own  second  son,  if  he  should  ever  have  one, 
or  otherwise  his  younger  brother,  Alfred.  De- 
fendant had  not  only  forgotten  this  favorite  project, 
but  in  his  Australian  will  had  quite  forgotten 
Upton  itself. 

As  to  his  love  aifair  with  Miss  Kate  Doughty,  it 
began,  said  his  Lordship,  in  the  summer  of  1849, 
when  the  cousins  met  after  the  lapse  of  many  years, 
in  which  they  had  not  seen  each  other  at  all. 
Lady  Doughty  seems  to  have  vacillated  much  as  to 
the  matter.  It  was  the  cause  of  a  very  long  and 
frequent  correspondence  between  herself  and 
Roger.  The  objection  to  his  addresses  chiefly  lay 
in  his  propensity  for  drink.  The  Chief  Justice 
said  that  this  evil  habit  seemed  to  have  been  much 
exaggerated  by  the  defendant's  counsel.  Roger 
was  far  from  being  an  habitual  drunkard ;  only 
two  or  three  instances  of  his  having  taken  too 
much  were  shown  ;  he  drank  no  more  than  would 
have  been  considered  a  virtue  in  the  preceding 
generation.  But  it  must  be  acknowledged  that  in 
the  letters  exchanged  between  himself  and  his 
aunt  she  is  continually  warning  and  chiding ;  he 
almost  as  frequently  appears  excusing  and  resolv- 
ing. With  due  deference  to  Sir  Alexander  we 
must  say  that  a  decided  alcoholic  flavor  hangs 
around  the  lad. 

The  counsel  for  the  defendant  had  further  stig- 
matized this  love  affair  as  a  "  humbug,"  a  word, 


TICHBORNE.  191 

said  his  Lordship,  now  for  the  first  time  introduced 
into  forensic  language.  It  had  been  charged  that 
Roger's  affection  was  a  mere  low  and  gross  animal 
passion.  The  accusation  was  base  and  groundless. 
Every  thing  known  about  it  pointed  to  precisely  an 
opposite  conclusion ;  every  word  of  multitudes  of 
letters  showed  it  to  be  a  "  noble,  tender,  generous, 
and  pure  "  feeling,  as  it  was  certainlj'-  a  most  deep 
and  ardent  one.  His  letters  are  marked  by  equal 
intensity  and  respect. 

But  the  course  of  his  true  love  ran  far  from 
smooth.  To  Sir  Edward  Doughty  the  match  was 
at  first  distasteful  by  reason  of  the  near  kinship,  an 
important  consideration  in  the  Catholic  Church. 
In  an  interview  occurring  January  11,  1852,  Roger 
succeeded  only  in  preventing  this  gentleman  from 
putting  an  absolute  veto  upon  his  hopes.  At  the 
close  of  the  same  month,  however,  Sir  Edward 
being  very  ill,  and  not  wishing  to  leave  a  stern 
prohibition  behind  him  in  case  of  his  death,  with- 
drew his  words,  and  reluctantly  assented  to  a  con- 
ditional engagement.  A  few  weeks  later  Lady 
Doughty  gave  her  consent.  The  visit  to  Tichborne 
in  June  (19  -  22)  following  was  caused  by  another 
threatening  illness  of  Sir  Edward.  Roger,  who  had 
found  the  previous  sick-bed  so  opportunely  favorable 
to  him,  was  encouraged  to  repeat  the  experiment 
now,  and  begged  to  have  his  term  of  probation 
shortened  so  that  an  early  marriage  might  take 
place.  But  he  did  himself  more  harm  than  good 
by  the  application.  It  was  refused,  and  about  the 
first  of  July  the  engagement,  so  far  as  the  young 


192  TICHBOENE. 

lady  was  concerned,  was  broken  off  altogether  by 
her  parents.  It  was  during  the  anxious  days  of 
that  June  visit  that  Roger  gave  his  cousin  the 
duplicate  of  the  sealed  packet. 

All  this  led  to  a  long  and  most  confidential  cor- 
respondence between  Roger  and  Lady  Doughty, 
which  continued  over  many  years.  The  letters 
were  not  of  a  kind  to  be  easily  forgotten  ;  they  were 
full  of  earnestness,  argument,  entreaty,  advice, 
promises,  negotiations  ;  and,  if  the  lady  sometimes 
appears  to  a  cold  observer  to  have  been  disingenuous, 
the  young  man  at  least  is  fall  of  ardent  enthusiasm. 
With  Gosford,  also,  a  confidential  correspondence 
was  sedulously  kept  up.  Yet,  said  the  Chief  Jus- 
tice, as  to  hundreds  of  letters  written  at  this  time 
and  on  this  subject,  the  mind  of  the  defendant  is 
an  utter  and  hopeless  blank.  The  jury  must  con- 
sider and  determine  whether  this  degree  of  forget- 
fulness  passed  the  limits  of  possibility. 

The  dates  of  the  letters,  and  their  contents,  too, 
were  most  important  as  bearing  on  the  question  of 
the  alleged  seduction.  This  was  sworn  to  have 
occurred  at  the  end  of  July  or  beginning  of  August. 
But  from  the  close  of  the  visit  in  June,  to  Novem- 
ber, 1852,  the  letters  are  all  dated  from  Canterbury, 
where  the  regiment  was  then  quartered.  Nor  does 
one  of  them  contain  any  trace  of  a  visit  to  Tich- 
borne.  On  the  contrary,  after  the  breaking  of  the 
engagement,  early  in  July,  Roger's  correspondence 
contains  the  reiterated  expression  of  his  fixed  re- 
solve not  to  visit  the  Park  again  under  any  circum- 
stances. 


TICHBORNE.  193 

The  same  letters  show  that  he  was  at  Canterbury 
at  the  time  fixed  by  the  defendant  for  the  occur- 
rence of  the  much  bruited  "  Brighton  card  case." 

After  Roger  had  taken  up  his  permanent  resi- 
dence in  England,  he  made  three  visits  to  Paris. 
The  last  of  these  was  in  February,  1853,  when  he 
went  there  to  take  leave  of  his  parents  before  start- 
ing upon  his  travels.  He  was  there  at  this  time  for 
three  weeks,  renewing  all  his  old  intimacies  with  the 
friends  and  tutors  of  his  boyhood,  and  finally  part- 
ing from  them  in  the  most  friendly  manner.  The 
defendant  testified  that  he  made  only  one  visit  to 
Paris  ;  that  he  then  stayed  only  two  or  three  days ; 
and  not  only  the  parting  festivities,  but  the  very 
names  of  the  friends  had  fled  irrecoverably  from  his 
memory. 

In  South  America,  for  the  first  time,  the  lines  of 
the  two  lives  draw  near  together.  Roger  was  at 
Valparaiso  ;  Orton  was  at  Valparaiso.  It  is  an  im- 
portant question  whether  or  not  Roger  ever  went 
to  Melipilla.  For  it  is  admitted  by  himself  that 
this  defendant  was  there,  and  it  may  be  regarded  as 
proved  that  Arthur  Orton  was  there.  It  does  not 
necessarily  follow,  even  if  Roger  was  not  there, 
that  the  defendant  is  Orton  ;  though  it  would  be 
evidence  tending  to  shoAV  that  identity.  But  if 
Roger  was  not  there,  then  this  defendant  was  not 
Roger.  With  the  purpose  of  aiding  the  jury  in 
coming  to  a  conclusion  on  this  point,  the  judge  re- 
viewed carefully  Roger's  diary  and  letters.  From 
these,  Roger's  movements  were  so  fully  and  accu- 
rately traced,  that  it  finally  appeared  that  his  time 

13 


194  TICHBOENE. 

was  completely  accounted  for  with  the  sole  excep- 
tion of  a  period  of  seventeen  days.  It  was  a  possi- 
bility that  he  had  gone  to  Melipilla  in  this  space. 
The  journey  to  and  fro  would  have  occupied  much 
of  the  time  ;  and  it  was  to  be  remembered  and 
weighed  by  the  jury  that  the  defendant  had  stayed 
in  Melipilla  long  enough  to  pick  up  some  knowledge 
of  Spanish,  to  form  a  wide  acquaintance  with  the 
people  there,  and  to  establish  a  quite  warm  and  inti- 
mate friendship  with  the  Castro  family.  It  was 
further  to  be  remarked  that  neither  in  any  sentence 
of  Roger's  diary,  nor  in  any  of  his  numerous  letters, 
was  there  the  slightest  trace  of  any  such  visit.  Yet 
there  was  no  reason  for  concealing  it ;  and  Roger's 
correspondence  was  uniformly  very  full  and  frank, 
mentioning  all  his  wanderings  and  doings. 

The  latest  letters  written  by  Roger  before  his 
sailing  from  Rio  indicate  his  intention  to  return 
home  within  a  reasonable  period  of  time.  He  was 
then  on  his  way  to  New  York,  intending  thence  to 
go  to  Mexico.  Beyond  this  he  seems  to  have  had 
no  definite  plans.  He  spoke  of  his  coming  back  as 
of  no  very  distant  event,  and  requested  to  have 
his  name  put  up  at  the  Traveller'  Club. 

Then  came  the  story  of  the  shipwreck,  an  utterly 
incredible  tale,  as  narrated  by  the  defendant, 
and,  indeed,  finally  abandoned  by  his  counsel  as  in- 
correct. The  theory  that  this  absurd  and  incredible 
narrative  was  to  be  accounted  for  on  the  score  of 
mental  affliction  or  aberration  was  possible,  if  not 
probable.  The  jury  were  to  consider,  however, 
whether  it  was  further  possible  that  this  disaster 


TICHBORNE.  195 

should  have  so  utterly  and  so  permanently  changed 
the  whole  intent,  mind,  and  character,  personal 
habits  and  tastes,  of  the  man  as  it  must  have  done 
if  this-  defendant  was  in  good  truth  the  rescued 
Roger  Tichborne.  In  this  connection  it  was  appro- 
priate to  recall  Roger's  disposition.  With  all  the 
faults  of  his  nature  and  of  his  education,  he  had 
never  shown  any  weakness  or  irresolution,  any 
want  of  persistency  or  of  stability.  Certainly  there 
was  nothing  in  his  previous  career  to  indicate  that 
such  a  cause  could  produce  so  astonishing  and  en- 
during an  effect. 

The  silence  of  this  young  man  who  had  been 
theretofore  so  frequent  a  correspondent,  and  who 
had  shown  to  the  last  moment,  when  he  was  surely 
known  to  be  still  living,  an  eager  desire  for  ample 
news  from  home,  was  most  surprising.  His  coun- 
sel had  accounted  for  this  by  divers  absurd  and 
some  impossible  theories.  He  had  said  that  Roger, 
knowing  his  own  unworthiness,  would  not  come 
forward  to  claim  his  position  so  long  as  his  brother 
Alfred  was  alive,  deeming  that  brother  a  fitter 
head  of  the  Tichborne  family  than  he  himself  could 
presume  to  be.  This  suggestion  found  stronger 
confutation  than  its  feebleness  required,  in  the  fact 
that  when  the  defendant  did  actually  proclaim  him- 
self, he  had  not  heard  of  the  decease  of  Alfred. 

Defendant  had  been  guilty  of  many  inaccuracies 
and  inconsistencies  in  his  recital  of  the  story  of  the 
wreck,  and  his  doings  thereafter.  He  had  not  told 
the  story  at  all,  nor  had  he  even  ventured  to  name 
the  rescuing  vessel  or  her  captain,  until  he  had 


196  TIOHBOENE.  » 

been  actually  compelled  to  file  his  affidavit  in 
Chancery,  and  in  it  to  state  these  matters.  When 
he  said  that  he  was  saved  by  the  "  Themis,"  he 
said  that  immediately  on  her  arrival  at  Melbourne 
he  went  ashore  with  her  captain,  and  went  to  the 
office  of  the  owner  or  consignees.  When  he  said 
he  was  saved  by  the  "  Osprey,"  he  said  that  he 
forthwith  went  ashore  with  the  captain  and  pro- 
ceeded straight  to  the  Custom-house.  But  no 
entry  of  the  arrival  of  an  "  Osprey "  appeared 
on  the  Custom-house  records.  Neither  story  tallied 
with  the  testimony  of  the  witness  from  the  "  Comet " 
(^ante,  p.  113). 

Defendant  said  that  he  was  at  first  anxious  to 
make  his  way  home  from  Australia,  but  could  ob- 
tain no  passage.  It  was  shown  that  at  the  very 
time  named  by  him  a  large  ship,  homeward  bound, 
was  lying  at  Melbourne,  seeking  a  complement  of 
passengers ;  also  that  another  large  ship  sailed  for 
England  a  fortnight  later,  and  that  upon  either  of 
these  he  could  have  taken  passage. 

He  did  not  draw  upon  his  bankers  or  write  to 
his  family  for  money,  but  lived  in  utter  indigence  ; 
making  a  livelihood  in  various  ignominious  and 
sometimes  dangerous  ways.  He  proved  a  not 
unskilful  slaughterman  and  butcher,  and  subse- 
quently being  asked  how  he  acquired  his  skill 
in  cutting  meat,  he  said  he  learned  it  at  Newgate 
Market,  London,  and  he  talked  of  that  -neighbor- 
hood in  a  manner  which  showed  a  familiar  ac- 
quaintance with  it.  Yet  it  was  not  presumably 
possible  that  Roger  Tichborne   could   ever  have 


TICHBORNE.  197 

acquired  such  minute  local  knowledge,  or  such 
handiness  with  the  cleaver. 

As  for  the  question  of  whether  an  "  Osprey " 
was  ever  at  Melbourne  at  all,  the  Chief  Justice 
said  the  evidence  was  very  insufficient  and  con- 
flicting ;  and  as  to  the  important  point  of  the  time 
when  she  was  there,  it  was  totally  impossible  to 
reach  any  satisfactory  conclusion. 

In  this  connection  his  Lordship  remarked  that 
if  Luie  was  an  impostor,  it  was  impossible  that  his 
imposition  should  not  have  been  known  to  the 
defendant.  The  fact  of  such  knowledge  upon  his 
part,  though  proving  nothing  against  the  defend- 
ant, nevertheless  had  a  material  bearing  upon  the 
degree  of  credibility  to  be  accorded  to  him. 

But  even  if  it  should  be  believed  that  the  veri- 
table Roger  Tichborne  was  indeed  rescued  and 
carried  to  Australia,  it  by  no  means  followed 
that  this  defendant  was  he.  In  every  thing  con- 
cerning that  rescue  this  defendant  had,  as  already 
noted,  manifested  gross  and  astonishing  ignorance. 
The  story  of  the  check  (ante,  p.  34)  was  adverted 
to  as  improbable  and  almost  obviously  false.  The 
forgetfulness  concerning  the  names  of  the  crew 
'  and  of  the  captain,  and  the  final  suggestion  of 
names  belonging  on  the  list  of  the  "  Middleton  " 
were  also  dwelt  upon  at  length. 

A  witness  for  the  defendant  had  sworn  that 
that  person  had  once  in  Australia  signed  a  receipt 
for  him,  writing  the  name  "  R.  D.  C.  D.  Tich- 
borne," and  that  he  had  brought  the  receipt  to 
England  and  shown  it  to  a  Hampshire  farmer,  but 


198  TICHBORNE. 

had  since  unfortunately  lost  it.  Still  more  unfor- 
tunately, when  that  Hampshire  farmet  was  called, 
he  fully  denied  this  statement.  Defendant  himself 
also  had  denied  that  he  had  ever  used  the  name  of 
"  Tichborne  "  in  Australia.  Further,  it  was  worthy 
of  remark,  that  at  the  time  of  this  receipt  he  had 
no  right  to  use  the  initial  "  D  "  for  Doughty. 

Defendant  said  he  was  engaged  to  serve  Mr. 
Foster  at  Boisdale  in  July,  1854,  and  traced  his 
service  at  two  or  three  other  subsequent  places. 
He  was  engaged,  he  said,  under  the  name  of 
Castro.  It  was  abundantly  proved  that  Mr. 
Foster  did  not  own  Boisdale  till  1856,  and  that 
at  the  end  of  that  year  Orton  was  engaged  in  Mr. 
Foster's  service  by  his  own  name.  The  periods 
assigned  for  his  services  at  the  various  places 
named  by  the  defendant  corresponded  in  length  with 
the  periods  of  Orton's  services  at  the  same  places. 
But  the  point  of  beginning  was  placed  earlier  by 
between  one  and  two  years.  If  the  dates  given  by 
the  defendant,  all  of  them  being  calculated  from 
this  earliest  one,  were  false,  then,  said  the  Chief 
Justice,  his  whole  Australian  narrative  falls  to  the 
ground  unsupported. 

His  Lordship  then  dwelt  upon  the  singular  fact  • 
that  Roger  Tichborne,  if  the  defendant  were  in- 
deed he,  should  have  married  a  domestic  servant, 
an  ignorant  woman,  who  was  known  to  him  to 
have  been  previously  unchaste  ;  for  she  had  borne 
a  child  before  the  nuptials. 

Advancing  next  to  the  time  when  defendant, 
being  still  in  Australia,  began  to  assert  his  claim, 


TICHBORNE.  199 

the  Chief  Justice  said  that  his  statements  then 
made  to  his  attorney,  Gibbes,  were  very  important. 
The  evidence  showed  that  he  had,  at  that  time, 
no  knowledge  of  a  great  number  of  matters  with 
which  Roger  should  have  been  familiar.  In  proof 
and  illustration  of  this,  many  instances  of  his  in- 
accuracy and  obliviousness  were  adduced.  Among 
these  were  enumerated  the  following :  He  said  he 
was  born  in  Dorsetshire,  whereas  Roger  was  born 
in  Paris;  he  said  the  estates  were  "tied  up"  and 
would  "  go  to  his  cousin  ; "  whereas  the  estates, 
though  subject  to  certain  incumbrances,  with  which 
Roger  had  once  at  least  been  familiar,  were  not 
"  tied  up  ;  "  neither  would  they  "  go  to  his  cousin," 
but  to  his  brother  Alfred,  of  whose  existence  de- 
fendant at  this  time  (on  the  supposition  that  he 
was  an  impostor)  had  never  heard.  He  once  even 
said  that  "  Tichborne  Hall,"  as  he  called  it,  was  in 
Surrey  ;  whereas  the  place  was  called  Tichborne 
Park  and  was  in  Hampshire.  He  said  that  he  had 
had  St.  Vitus's  dance,  and  frequently  repeated 
the  statement ;  of  Roger  this  was  false,  nor  would 
everj^  one  readily  accept  the  Dowager's  explana- 
tion, that  he  had  confused  the  rheumatism  with 
this  disease ;  he  said  that  his  mother  was  large 
and  stout ;  whereas,  in  fact,  as  was  ungallantly 
shown  in  evidence,  she  was  "  leanness  itself ;  "  he 
said  he  left  Paris  at  the  age  of  eleven  years  ;  Roger 
did  not  leave  till  he  was  sixteen  ;  he  said  the  Tich- 
borne "  dole  "  was  three  shillings  in  the  pound  of 
income  ;  it  was  in  fact  only  sundry  loaves  of  bread  ; 
then  he  said  the  name  was  sometimes  spelled  with 


'200  TICHBOKNE. 

a  "u"  before  the  "r,"  which  was  not  the  case. 
The  name  of  Gosford,  even  the  name  of  his  mother, 
were  both  unknown ;  the  place  of  his  education 
was  unknown ;  the  number  and  name  of  his  regi- 
ment were  unknown ;  his  rank,  the  manner  of  his 
joining,  and  the  length  of  his  stay  in  the  regiment, 
were  unknown.  If  defendant  was  Roger  he  had 
utterly  forgotten  all  these  things. 

The  will  was  then  mentioned,  with  all  its  ab- 
surdities and  falsehoods,  especially  the  naming  of 
two  executors  unknown,  upon  any  possible  supposi- 
tion, to  Roger  Tichborne. 

In  his  statutory  declaration  made  at  Sydney, 
defendant  said  that  he  left  England  November  28, 
1852,  in  the  "  Jessie  Miller."  This  was  the  date 
of  Arthur  Orton's  departure  for  Hobart  Town,  and 
the  "  Jessie  Miller"  was  the  name  of  the  vessel  in 
which  Arthur  had  come  home  from  South  America. 
But  in  November,  1852,  Roger  was  hunting  in  Dor- 
setshire ;  he  left  England  in  March,  1853,  for  France, 
and  sailed  from  Havre  for  Valparaiso  three  weeks 
later.  There  was  no  reasonable  way  in  which  he 
could  be  supposed  even  to  have  heard  of  the  name 
of  the  vessel  "  Jessie  Miller." 

Knowledge,  as  his  Lordship  remarked,  is  far  from 
being  of  equal  weight  with  forgetfulness.  The  one 
cannot  be  set  off  against  the  other  and  a  balance 
struck  ;  for  the  forgetfulness  must  be  genuine,  the 
knowledge  may  be  acquired.  Such  knowledge  as 
this  defendant  really  did  at  first  show  he  had  some 
few  means  of  obtaining,  and  perhaps  the  extent  of 
the  means  was  even  greater  than  the  extent  of  the 
knowledge,  e.g.  as  to  his  mother's  name  (aw<6',p.  21). 


TICHBOENE.  201 

For  example,  he  was  furnished  with  some  obitu- 
aries in  the  "Illustrated  News;"  the  advertise- 
ments and  letters  of  Lady  Tichborne  yielded  more 
information ;  at  Sydney  he  encountered  a  Hamp- 
shire man  who  could  tell  him  something  ;  and  there 
also  he  got  hold  of  Bogle.  After  he  came  to 
England  the  opportunities  for  coaching  were  im- 
mense. It  was  noteworthy  that  in  Australia  one 
or  two  errors  in  the  advertisements,  concerning 
points  of  personal  appearance,  were  at  first  eagerly 
grasped  at  and  adopted  by  the  defendant,  and  were 
only  repudiated  afterward  when  their  incorrectness 
became  known  to  him  from  other  sources. 

As  for  Bogle,  he  was  the  old  family  servant. 
From  the  Dowager's  letters  it  was  learned  that  he 
was  a  black  man,  and  that  he  was  at  Sydney  and 
on  the  lookout  for  her  supposed  son.  The  defend- 
ant, thus  forewarned  and  forearmed,  came  to  Syd- 
ney, and  there  found  a  black  man  at  the  hotel  who 
had  been  inquiring  for  him  and  was  awaiting  his 
arrival.  He  had  the  shrewdness  to  recognize  and 
address  him  as  Bogle,  and  at  once  took  captive  the 
negro's  convictions  and  sympathy.  From  him  the 
defendant  got  much  assistance,  probably  not  fraud- 
ulently communicated,  but  naturally  elicited  under 
the  circumstances.  Bogle,  for  example,  is  known 
to  have  furnished  the  defendant  with  a  view  of 
Tichborne,  with  a  likeness  of  Sir  Edward  Doughty, 
and  with  the  Tichborne  and  Doughty  crests.  Bogle 
erroneously  thought  that  Upton  had  been  bought 
by  the  family,  and  the  defendant  adopted  the  error. 
Though  the  Upton  estate  h^-d  been  the  foundation 


202  TICHBORNE. 

of  a  favorite  and  long-cherished  scheme  entertained 
by  Roger  (ante,  p.  190).  At  the  first  trial,  Bogle 
said  that  he  first  mentioned  the  name  of  Gosford 
to  the  defendant,  but  at  this  trial  he  had  sworn 
that  the  defendant  first  mentioned  that  gentleman's 
name  to  him. 

After  the  defendant's  arrival  at  London,  his  ex- 
pedition to  Wapping,  together  with  the  sham  let- 
ters, false  stories,  and  other  deceits  which  followed, 
were  mentioned  as  utterly  incomprehensible  on  the 
supposition  of  the  defendant's  honesty.  There  was 
no  reason  why  Roger  Tichborne  should  be  found 
floundering  in  such  a  labyrinth  of  complications 
utterly  alien  to  himself  and  foreign  to  all  his  in- 
terests. If,  indeed,  a  friendship  with  Orton  was 
at  the  bottom  of  his  anxiety,  there  was  at  least  no 
conceivable  need  of  such  haste,  neither  the  slight- 
est provocation  for  the  practice  of  any  kind  of  con- 
cealment or  deception.  But  the  theory  of  the 
learned  counsel  for  the  defendant,  that  the  per- 
sonality of  Orton  had  altogether  overlaid,  absorbed, 
and  destroyed  in  Roger  his  own  independent  per- 
sonality, must  be  rejected  as  monstrous,  incompre- 
hensible, and  absurd.  If  possible  with  some  men, 
it  was  wholly  incompatible  with  Roger's  nature, 
as  the  same  had  been  clearly  developed  in  his 
known  life  and  letters. 

Then  the  covert  journey  to  Alresford  and  scout- 
ing round  the  Park,  and  sending  Bogle  into  the 
house  with  special  instructions  to  see  and  report 
to  defendant  what  pictures  were  there,  and  the 
refusal   to   see   Roger's  cousin,   Mrs.   Greenwood, 


TICHBOENE.  203 

who  sent  him  a  khidly  invitation ;  and  his  false 
story  to  his  mother,  accounting  for  his  not  making 
that  visit,  —  all  these  matters  were  recalled  as  most 
singular  and  unexplainable. 

Then  there  was  Gosford's  testimony.  The  Chief 
Justice  showed  very  plainly  that  it  was  much  for 
Gosford's  personal  interest  to  have  supported  this 
defendant's  claim,  and  intimated  that  Mrs.  Gos- 
ford  very  clearly  saw  and  appreciated  this  fact 
from  the  outset.  Had  Gosford  been  capable  of 
telling  a  lie,  never  could  he  have  been  more 
tempted  to  do  so.  Gosford,  however,  though  cal- 
umniously  charged  with  the  commission  of  a  felony 
by  the  defendant's  counsel,  had  spoken  his  true 
conviction  without  regard  to  his  own  interest.  It 
was  noticeable  that,  to  all  the  many  interrogatories 
put  to  him  by  Gosford  at  their  first  interview  and 
journey  together,  defendant  at  the  time  had  no 
answers  ready,  except  the  staple  reply  of  forget- 
falness.  But  afterward  he  became  well  posted  in 
the  matters  suggested  and  inquired  of  in  these 
memorable  and  important  conversations.  If  Gos- 
ford had  done  nothing  else,  he  had  at  least  put  the 
Claimant  upon  his  inquiry  as  to  many  matters. 

As  for  the  evidence  of  Lady  Tichborne,  the  Chief 
Justice  bade  the  jury  not  to  be  led  away  by  idle 
declamation  about  a  "mother's  instinct,"  —  after 
all  it  was  nothing  more  than  instinct.  If,  before  she 
had  seen  him,  the  blunders  about  the  "  brown  mark," 
the  "  Brighton  card  case,"  and  the  many  others  here- 
tofore recited,  had  not  so  much  as  shaken  the  lady's 
predetermined  belief,  then  her  judgment  certainly 


204  TICHBORNE. 

was  entitled  to  have  but  slight  weight.  The  man- 
ner in  which  she  had  encountered  doubts  and  ex- 
postulations coming  from  others,  bore  in  the  same 
manner  against  allowing  to  her  opmion  the  full 
value  which  might  otherwise  be  claimed  for  the 
assertion  of  a  mother  in  such  a  matter.  When  she 
first  went  to  see  the  defendant  (after  having  thrice 
sent  in  vain  for  him  to  come  to  see  her),  she  found 
him  lying  on  a  bed  with  his  face  turned  inward 
toward  the  Avail  and  his  back  to  hej.  Even  then, 
according  to  the  evidence,  she  declared  almost  at 
once  that  she  recognized  him,  saying  so  before  she 
had  even  seen  his  features,  and  in  spite  of  the  un- 
deriied  and  undeniable  fact  that  he  was  exceed- 
ingly changed  in  form  and  figure. 

The  Chief  Justice  then  called  the  attention  of 
the  jury  to  the  fact  that  none  of  the  members  of  the 
Tichborne  family  had  any  material  interest  in  oppos- 
ing the  genuineness  of  the  defendant's  claim.  None 
had  any  estates  in  possession  or  in  expectancy  to 
lose  if  he  prevailed.  For  all  the  lands  and  property 
belonged  to  the  child  of  Alfred.  Only  if  he  should 
die  could  Lady  Radcliffe  tak6  any  thing.  No  one  but 
he  could  derive  any  benefit  from  the  ousting  of  this 
Claimant,  and  he  was  an  infant  too  young  to  know 
the  meaning  of  the  battle  waging  in  his  behalf. 

The  Chief  Justice  next  adverted  to  the  inter- 
view between  Mr.  Henry  Danby  Seymour  and  the 
defendant,  at  which  Burden,  the  old  family  ser- 
vant, was  present,  and  was  mistaken  by  defendant 
for  Mr.  Nangle,  an  uncle  of  Roger,  thirty  years 
older  than  Burden.     Mr.  Seymour  then  said  plainly 


TICHBORNE.  205 

that  he  did  not  recognize  the  defendant  as  Roger 
Tichborne.  But  the  defendant  made  precisely  the 
contrary  statement  in  a  letter  narrating  the  meet- 
ing to  the  Dowager.  At  this  same  time  also  a  let- 
ter wiitten  by  Sir  James  Tichborne  was  shown  to 
the  defendant,  but  he  did  not  know  the  handwrit- 
ing of  the  person  whom  he  claimed  as  his  father. 
In  the  account  of  this  interview  Mr.  Seymour  and 
Burden  were  perfectly  agreed  in  their, testimony, 
which  was  however  directly  contradicted  by  the 
defendant.  His  Lordship  remarked  that  similar 
contradictions  were  of  very  frequent  occurrence. 
They  happened  in  reference  to  matters  of  recent 
date  and  of  sufficient  importance  to  be  remembered. 
They  could  not  be  accounted  for  as  mistakes  or 
lapses  of  memory.  Either  the  defendant  had  told 
a  series  of  falsehoods  in  his  evidence  concerning 
meetings  and  conversations  similar  to  this  with 
Mr.  Seymour,  or  else  a  great  number  of  the  Crown 
witnesses  had  been  guilty  of  the  sin  of  perjury. 

When  the  defendant  and  Lady  Radcliffe  first 
encountered  her  husband.  Sir  J.  Percival  Radcliffe, 
and  her  sister,  Mrs.  Towneley,  were  present.  Mrs. 
Towneley  was  much  the  older  of  the  two,  and  there 
was  no  resemblance  between  them  in  feature. 
The  defendant  however  saluted  her  as  Mrs.  Rad- 
cliffe. His  mistake  was  then  pointed  out  to  him 
and  explained,  whereupon  he  said  to  Mrs.  Towne- 
ley,—  "  Oh,  yes  !  I  was  wrong  ;  you  must  of  course 
be  Lucy,  because  you  are  older."  Afterward 
defendant  sought  to  explain  his  blunder  by  saying 
that  the  ladies  had  their  veils  down.     In  this  how- 


206  TICHBORNE. 

ever  he  was  again  contradicted  by  them.  Even 
if  the  veils  were  down,  however,  it  was  a  question 
how  transparent  they  were  and  how  far  they  per- 
mitted him  to  see  tlie  countenances  behind  them. 
He  certainly  undertook  to  make  the  recognition. 
The  Chief  Justice  said  it  was  for  the  jury  to-  con- 
sider whether  in  twelve  years  it  was  possible  for 
a  man  so  utterly  to  forget  the  face  and  form  of  a 
woman  whom  he  had  passionately  loved  as  thus  to 
fail  to  recognize  her. 

Sir  Percival  requested  defendant  to  talk  with 
his  wife  about  old  times ;  but  that  gentlemanly 
person,  according  to  his  own  account,  refused  to 
do  so,  happily  remarking,  as  his  reason,  that  what 
had  passed  between  them  in  the  old  times  was 
sacred  and  would  never  be  known  to  Sir  Percival. 
The  Chief  Justice  commented  upon  the  brutal 
vulgarity  of  the  remark.  But  perhaps  it  was 
never  made ;  Sir  Percival  denied  that  it  was.  It 
was  another  of  the  numerous  list  of  contradictory 
assertions  lately  referred  to. 

At  a  second  interview  the  defendant,  whether 
from  alarm,  embarrassment,  anger,  or  other  cause, 
abruptly  broke  off  the  conversation  with  the  remark 
that  "  this  was  not  in  the  contract "  ! 

In  talking  with  Lady  Radcliffe  the  defendant 
fell  into  a  strange  error  in  the  matter  of  dates. 
She  asked  him  when  and  where  they  last  met. 
He  replied  that  it  was  at  Tichborne,  shortly  before 
he  went  away  and  when  Sir  Edward  Doughty  was 
ill.  Now  Roger  went  away  from  England  in  Feb- 
ruary, and  from  Europe  in  March,  1853 ;  Sir  Ed- 


TICHBOENE.  207 

ward's  illness  was  also  in  March ;  defendant  had 
testified  positively  that  he  was  not  at  Tichborne 
and  did  not  see  his  cousin  again  after  their  meeting 
in  the  village  in  November,  1852,  when  she  told 
him  of  her  pregnancy ;  and  the  letters  of  Roger, 
corroborated  by  the  evidence  of  witnesses  for  the 
Crown,  went  far  towards  showing,  if  they  did  not 
indubitably  prove,  that  Roger  was  not  at  Tich- 
borne after  June,  1852.  This  was  a  very  bad 
entanglement ! 

The  Chief  Justice  then  compared  the  letters  of 
Roger  and  of  the  defendant,  pointing  out  not  only 
the  variance  of  style  and  tone  but  the  wide  differ- 
ence in  accuracy  and  propriety.  The  defendant's 
letters  were  full  of  errors  in  grammar  and  in  spell- 
ing. They  were  the  epistles  of  an  illiterate  and  of 
a  coarse  man.  They  were  at  times  vulgar  in  mat- 
ter and  expression.  Except  such  carelessness  or 
oddity  of  idioms  as  might  be  fairly  and  readily 
traced  to  his  French  education,  the  letters  of  Roger 
had  been  the  reverse  of  all  this.  The  defendant 
sprinkled  the  phrase  "my  dearest  mama"  over  his 
letters  with  a  profusion  equally  ridiculous  and 
boorish ;  but  Roger's  letters  showed  no  such  habit. 
Indeed  if  the  truth  must  be  told  the  correspond- 
ence of  the  real  Roger  with  his  mother  did  not 
indicate  an  enthusiastic  affection ;  not  unfrequently 
he  felt  called  upon  to  rebuke  her;  and  in  speaking 
of  her  in  his  letters  to  his  other  relatives  and  friends 
he  expresses  sentiments  by  no  means  of  unalloyed 
affection  or  blind  admiration. 

Defendant  spelled  the   names  of  the   Seymour 


208  TICHBORNE. 

family,  whom  he  claimed  as  his  relatives,  Seymore. 
He  wrote  to  Hopkins,  the  old  solicitor  of  the  Tich- 
borne  family,  referring  to  their  "  old  friendship  " 
and  speaking  of  his  "  pleasure  in  again  receiving 
that  gentleman's  advice."  Whereas  Roger  had 
left  home  with  feelings  by  no  means  especially 
kindly  towards  Hopkins,  who  had  played  such  a 
part  in  the  proposed  arrangements  concerning  the 
family  estates  when  Roger  came  of  age,  as  had 
inspired  the  young  heir  with  suspicion,  if  not  with 
actual  dislike.  Hopkins  had  at  first  failed  to  rec- 
ognize the  defendant  as  Sir  Roger  ;  but  he  had  by 
degrees  been  won  over  to  a  contrary  opinion, — by 
what  means,  as  it  was  remarked,  did  not  appear. 

Bogle,  Carter,  and  M'Cann,  the  two  last  being 
old  military  servants  of  Roger  in  the  Carabineers, 
had  espoused  the  cause  of  the  defendant.  They 
had  lived  with  him  and  heen  supported  by  his 
bounty.  The  two  last  were  now  both  dead ;  but 
while  yet  alive  they  had  borne  testimony  in  his. 
favor.  His  Lordship  did  not  accuse  them  of  dis- 
honest conduct  or  of  furnishing  illicit  informa- 
tion to  the  defendant.  But  he  reminded  the  jury 
that  a  shrewd  man  might  easily  have  gathered 
very  much  from  them,  without  their  intending  or 
knowing  it.  Especially  would  this  be  easy  after 
they  had  once  adopted  a  favorable  belief,  ceased 
to  observe  the  defendant  with  suspicion,  and  begun 
to  speak  to  him  with  a  friendly  frankness  and  un- 
reserve. 

Captain  Polhill  Turner,  the  captain  of  Roger's 
company  in  the  Carabineers,  wrote  to  defendant, 


TICHBOENE.  209 

inviting  him  to  make  a  friendly  visit.  Roger  ac- 
cepted the  invitation,  but  with  no  intention  of 
really  acting  upon  it.  He  wrote  to  the  Dowager : 
"  I  told  you  I  was  not  going  to  Bedford,  and  I  am 
not  a-going." 

In  addition  to  the  indirect  "•  coaching  "  obtain- 
able from  so  many  old  servants  and  others,  it  had 
been  shown  at  the  trial  that  the  records  at  the 
Horse  Guards  had  been  examined  to  find  out  the 
places  at  which  Roger's  regiment  had  been  quar- 
tered during  his  term  of  service  ;  that  a  list  of  the 
fathers  at  Stonyhurst  during  his  school  days  there 
had  been  obtained ;  and  that  other  similar  inves- 
tigations had  been  pursued.  In  addition  to  this 
the  Chief  Justice  reminded  the  jury  that  a  great 
number  of  Roger's  letters,  and  sundry  journals  and 
diaries  which  he  had  kept,  had  all  been  in  the 
hands  of  his  mother,  and  had  presumably  been 
placed  by  the  Dowager  at  the  disposal  of  the 
defendant.  From  these  a  great  deal  could  be 
gathered.  His  Lordship  did  not  say  that  any 
thing  had  been  learned  from  them ;  but  it  was 
proper  to  state  the  fact  of  such  a  possibility. 

In  this  manner  might  the  notorious  story  of  the 
snuff-box  and  Colonel  Eraser  be  accounted  for. 
The  defendant  said  he  had  given  to  this  gentleman 
a  silver  snuff-box,  an  old  one  which  he  carried 
himself ;  he  had  bought  it  in  London,  somewhere  in 
Piccadilly,  as  he  thought ;  it  bore  his  initials,  but 
not  the  Tichborne  crest.  This  story  gave  rise  to 
much  comment ;  for,  in  fact,  Roger  had  given  a 
snuff-box  to  Colonel  Fraser ;  but  then  it  was  of  wox)d, 

14 


210  TICHBORNE. 

not  of  silver.  The  circumstances  attendant  upon 
the  giving  were  also  very  differently  narrated 
by  the  colonel  himself,  and  by  the  defendant ;  and 
the  story  of  the  latter  had  by  no  means  a  natural 
or  probable  appearance.  He  said  that  he  offered 
the  colonel  a  pinch  of  snuff,  whereupon  the  colonel 
took  the  box  itself,  shut  it  up  and  put  it  into  his 
own  pocket.  "  Then,"  said  the  defendant,  "  I 
told  him  that  he  might  keep  it  as  his  own."  Now 
it  was  certainly  strange  that  the  defendant  should 
have  remembered  such  a  gift;  it  was  either  real 
memory  or  "  coaching  "  of  some  sort ;  for  the  in- 
cident was  not  one  likely  to  have  been  invented. 
Neither  would  it  have  been  strange  if  he  had 
recalled  only  the  fact  and  had  forgotten  the 
attendant  circumstances,  after  so  long  a  lapse  of 
time.  But  he  did  not  say  that  he  had  forgotten 
them ;  on  the  contrary,  he  professed  to  have  a 
distinct  and  accurate  recollection,  and  imbedded 
the  simple  fact  in  a  minute  narrative.  Yet  that 
recollection  was  certainly  erroneous  in  an  essential 
particular,  and  was  not  improbably  erroneous  al- 
together. A  supposition  which  might  explain  this 
singular  mixture  of  truth  and  error,  and  which  had 
the  merit  of  being  in  itself  perfectly  possible,  was 
tiiat  in  some  diary  the  defendant  might  have  found 
a  memorandum  made  by  Roger,  of  his  having  given 
a  snuff-box  to  Colonel  Fraser,  without  more.  The 
attempt  to  be  more  elaborate  had  then  betrayed 
him. 

In  one  of  the  defendant's  letters  he  referred  to 
the  fact  that  his  opponents  had  broached  the  theory 


TICHBORNE.  211 

of  his  being  one  "  Horton."  But  this  man,  he  said, 
was  living  at  Wagga-Wagga,  under  an  assumed 
name.  He  was  a  "  dark  man,"  and  "  very  much 
marked  with  the  small-pox."  The  Chief  Justice 
called  attention  to  the  inaccuracy  of  this  descrip- 
tion, as  compared  with  all  the  descriptions  of 
Orton,  who  was  blue-eyed,  light-haired,  and,  if 
pock-marked  at  all,  was  certainly  not  "  very 
much"  so. 

Then  the  Wapping  visits  were  again  dwelt  upon. 
Of  their  folly  the  Chief  Justice  could  say  nothing 
stronger  than  had  already  been  said  by  Dr.  Kenealy 
himself.  Nor  was  it  necessary  to  point  out  what 
they  naturally  and  immediately  suggested  to  every 
mind.  But  his  Lordship  remarked  that  the  de- 
struction of  the  letters  written  to  the  defendant 
by  Orton's  sisters,  and  especially  by  Charles  Orton, 
who  was  receiving  a  weekly  stipend  from  him,  was 
most  significant.  It  would  have  been  a  matter  of 
the  highest  interest  and  importance  to  know  upon 
what  basis  those  letters  were  written.  Were  they 
addressed  to  Roger  Tichborne  or  to  Arthur  Orton  ? 
In  which  character  did  they  show  that  the  writers 
recognized  the  defendant,  and  that  he,  at  least  in 
the  case  of  Charles  Orton,  allowed  them  to  rec- 
ognize him  ?  Had  they  borne  this  indirect  tes- 
timony to  the  fact  of  his  being  Tichborne,  why 
should  they  have  been  destroyed?  Why  not, 
rather,  have  been  carefully  preserved  and  triumph- 
antly produced  ?• 

In  the  civil  cause  it  was  considered  most  desir- 
able that  the  defendant  should  be  confronted  with 


212  TICHBOENE. 

the  witnesses  in  South  America  and  Australia. 
Commissions  were  issued  to  take  evidence  in  these 
places,  and  at  first  the  design  was  to  have  them 
proceed  simultaneously.  The  defendant  opposed 
this,  on  the  ground  that  he  wished  to  be  present 
in  person  both  in  Chili  and  in  Australia ;  and  made 
the  following  affidavit :  "  I,  Sir  Roger  Charles 
Tichborne,  say  I  have  made  the  necessary  arrange- 
ments for  proceeding  immediately  to  Chili  and 
Australia,  to  be  present  upon  the  examination  of 
witnesses  there  under  the  commissions  issued  in 
this  action ;  and  I  distinctly  swear  that  it  is  my 
positive  intention  to  carry  but  such  arrangements, 
and  after  the  execution  of  the  commission  in  Chili 
to  proceed  directly  from  thence  to  Australia  for 
the  like  purpose." 

Accordingly  it  was  arranged  that  the  Chilian 
commission  should  be  despatched  first,  and  that  at 
its  conclusion  the  Australian  commission  should  be 
proceeded  with.  The  Claimant  set  forth  with  the 
parties  having  the  commission  in  charge,  and  duly 
arrived  with  them  in  South  America.  But  there, 
upon  the  plea  of  illness,  he  separated  from  them ; 
and  it  was  a  remarkable  fact  that  he  returned 
without  having  encountered  face  to  face  a  single 
one  of  the  Chilian  or  Australian  witnesses.  After- 
ward an  unfortunate  passage  in  one  of  his  letters 
was  discovered,  containing  what  the  Chief  Justice 
very  naturally  described  as  the  "startling  avowal" 
that  he  had  not  from  the  outset  had  any  real  idea 
of  confronting  these  persons ;  nay,  that  he  had  not 
even  intended  to  go  so  far  as  South  America,  but 


TICHBORNE.  213 

had  resolved  to  leave  the  ship  at  Lisbon,  and  had 
only  been  prevented  from  doing  so  by  some  diffi- 
culty about  his  luggage  occurring  when  the  vessel 
touched  there. 

It  was  this  strange  shirking,  and  this  untoward 
acknowledgment  of  his  original  design,  which  made 
his  attorney,  Mr.  Holmes,  throw  up  his  case.  Yet 
Mr.  Holmes  had  every  incentive  to  persuade  him- 
self of  the  genuineness  of  the  Claimant,  and  to 
stand  by  him  so  long  as  there  was  a  gleam  of  hope 
left  in  his  case.  For  before  his  departure  to  Chili 
he  had  been  induced  by  Mr.  Holmes  to  make  his 
will,  in  which  he  gave  the  Upton  estate  to  Mr. 
Holmes,  made  that  gentleman  his  executor,  with 
an  additional  £500  for  his  services  in  that  capacity, 
and  also  appointed  him  agent  of  the  property,  with 
a  salary  of  £1000  per  annum.  Yet  though  the 
contingent  recipient  of  so  liberal  a  bounty  did 
finally  make  up  his  mind  to  abandon  the  cause  of 
his  friend,  he  did  not  therefore  escape  the  censure 
of  the  Chief  Justice.  On  the  contrary,  that  rigid 
conservator  of  professional  morals  read  the  attorney 
a  severe  lecture  concerning  the  gross  impropriety 
of  inducing  his  client  to  execute  such  a  testament, 
and  a  still  severer  lecture  for  his  behavior  in  get- 
ting up  his  client's  case.  The  instant  that  any  one 
said  or  did  owy  thing  which  could  be  shaped  into  a 
recognition  of  the  defendant  as  the  veritable  Roger, 
down  it  had  been  set  upon  the  instant  in  writing 
by  direction  of  this  Mr.  Holmes,  who  seems  never 
to  have  moved  unattended  by  his  scribe.  It  was 
then  signed   and   sworn  to,  and  appeared  as  an 


214  TICHBORNE. 

affidavit  in  the  case.  Next  the  affidavits  of  A  and 
B  were  sent  to  C,  and  his  affidavit  having  been 
elicited  in  this  way,  the  affidavits  of  A,  B,  and  C 
were  shown  to  D,  and  his  statement  was  solicited. 
In  this  unjustifiable  manner  no  less  than  one  hun- 
dred and  eighty  affidavits  had  been  procured.  Nor 
was  this  all ;  for  it  had  appeared  that  some  of  these 
had  been  so  dishonestly  drafted  as  to  be  very  far 
from  accurately  expressing  the  real  opinions  and 
assertions  of  the  persons  whose  statements  under 
oath  they  purported  to  be. 

The  letters  of  the  defendant  were  particularly 
unhappy.  We  have  already  had  occasion  to  com- 
ment upon  several ;  the  Chief  Justice  now  called 
the  attention  of  the  jury  to  another.  A  lock  of 
hair  had  been  sent  from  Chili,  which  was  sworn  to 
have  been  cut  from  the  head  of  Arthur  Orton  when 
he  was  at  Melipilla.  Donna  Hayley  had  proved 
that  Orton  was  at  that  place,  and  t-tayed  there  a 
year.  It  had  not  been  proved  that  Roger  had  ever 
been  there ;  indeed  the  contrary  seemed  probable, 
if  not  certain  (aw^e,  p.  193, 194).  Donna  Hay  ley's 
evidence  was  corroborated  by  the  defendant's  own 
letters.  Now,  this  lock  of  hair,  when  first  received, 
had  been  accepted  by  defendant  as  his  own ;  and  it 
was  not  tiU  long  after,  when  his  blunder  had 
become  obvious,  that  he  repudiated  it,  and  said 
that  he  had  been  mistaken  in  acknowledging  it  to 
have  been  cut  from  his  head.  Yet  at  first  he  was 
well  pleased  to  get  it,  and  wrote  in  a  manner  ex- 
pressive of  satisfaction  that  his  friend  Castro  had 
"  sent  part  of  my  hair."     The  lock  was  laid  beside 


TICHBOENE.  215 

a  lock  cut  from  Roger's  head  at  nearly  the  same 
time  ;  it  was  very  much  lighter.  If,  said  the  Chief 
Justice,  emphatically,  that  hair  from  Melipilla  had 
really  grown  on  this  defendant's  head,  then  this 
defendant  was  proved  not  to  be  Roger  Tich- 
borne. 

At  this  point  his  Lordship  further  dwelt  upon 
the  fact  that  the  defendant  had  not  only  at  first 
appeared  wholly  ignorant  of  the  only  journey  made 
by  Roger  from  which  he  could  possibly  have  turned 
aside  to  Melipilla,  but  had  even  positively  set  the 
visit  to  that  place  at  a  time  when  it  was  clearly 
proved  to  be  physically  impossible  that  Roger  should 
have  been  there.  These  blunders  he  fell  into  in  his 
Chancery  examination  in  1867.  Afterward  he  in 
part  amended  his  story  at  the  trial  in  1871.  But  it 
was  noteworthy  that  in  the  interval  Moore,  the  man 
who  had  been  in  attendance  upon  Roger  in  South 
America,  had  turned  up,  and  had  shed  a  great  deal 
of  light  upon  that  part  of  Roger's  career. 

As  for  the  mere  opinions  which  had  been  ex- 
pressed on  the  question  of  identity,  especially  after 
so  long  a  time  had  elapsed,  his  Lordship  frankly 
said  that  he  thought  little  of  most  of  them.  Many 
of  those  advanced  by  the  Wapping  witnesses  in 
favor  of  the  defendant  were,  beyond  question, 
nearly  or  quite  worthless.  Yet  there  were  some 
few  to  which  greater  weight  must  be  conceded ;  for 
example,  that  of  Miss  Loder.  She  had  seen  Arthur 
Orton  daily  as  a  lover,  and  she  was  not  likely  to 
forget  or  mistake  him.  Neither  if  Orton  had 
treated  her  ill  and  jilted  her,  was  it  any  reason 


216  TICHBOBNE. 

why  she  should  have  any  spite  to  wreak  against 
Sir  Roger  Tichborne.  If  this  defendant  were 
Roger,  Miss  Loder  could  not  satisfy  her  revenge 
against  Orton  by  swearing  that  Roger,  whom  she 
never  saw  or  knew,  was  her  unfaithful  swain. 

The  Chief  Justice  then  adverted  with  much 
severity  to  the  manner  in  which  the  defendant  and 
his  friends,  agents,  and  supporters,  had  sought  to 
accumulate  evidence  in  his  favor  by  creating  a 
popular  excitement  in  his  behalf.  Public  meetings 
had  been  held,  addresses  had  been  made,  and  all 
for  the  sake  of  arousing  so  strong  and  wide-spread 
a  prejudice  and  force  of  public  opinion  in  his  behalf 
that  persons  would  succumb  to  it,  and  be  carried 
away  by  it  to  believe  in  him.  Witnesses  were  not 
left  to  form  an  unbiassed  judgment,  and  the  hope 
had  been  that  even  the  jury  could  not  be  insensible 
to  such  a  pressure  of  general  and  loudly  expressed 
conviction.  The  judges  had  allowed  the  defendant 
exceptional  immunities  and  privileges,  because  they 
had  felt  that  in  so  costly  a  trial,  where  the  Govern- 
ment was  against  him,  he  ought  to  have  a  full 
opportunity  to  appeal  for  pecuniary  aid.  But  the 
liberality  thus  manifested  by  the  Court  had  been 
scandalously  abused,  and  his  Lordship  expressed 
his  desire  that  it  should  not  hereafter  be  drawn 
into  precedent. 

Nor  did  the  Government  escape  uncastigated. 
His  Lordship  had  in  his  scourge  a  thong  for  every 
back.  The  Crown  had  shown  a  disgraceful  par- 
simony in  failing  to  produce  sundry  important 
foreign  witnesses.     In  a  cause  of  the  nature  and 


TICHBOENE.  217 

magnitude  of  this  one,  when  Government  had  once 
resolved  to  prosecute,  nothing  could  excuse  them 
for  not  prosecuting  thoroughly.  No  consideration 
of  expense  should  interfere  with  their  making  out 
the  clearest  and  most  indubitable  case  possible. 
They  were  bound  to  put  the  truth  beyond  a  doubt, 
and  no  witness  who  could  advance  this  purpose 
should  be  left  unproduced,  no  matter  what  it  might 
cost  to  bring  him.  Government  had  been  derelict 
in  this  respect,  and  was  blameworthy. 

There  was  a  formidable  mass  of  testimony  going 
to  show  that  the  defendant  was  not  Arthur  Orton. 
Marks  had  been  sworn  to  be  upon  Arthur  which 
were  not  upon  defendant ;  and  marks  were  on 
defendant  which  were  sworn  not  to  be  upon 
Arthur.  Much  of  this  evidence,  however,  was 
wholly  untrustworthy,  and  much  more  was  subject 
to  grave  doubt.  The  Chief  Justice  summed  it  up 
and  commented  upon  it  with  much  care,  but  no 
definite  result  could  possibly  be  arrived  at  from 
such  confused  and  irreconcilable  materials.  Chaotic 
his  Lordship  found  it,  and  chaotic  he  was  obliged 
to  leave  it.  Some  witnesses  had  sworn  to  seeing 
Orton  and  the  defendant  together.  But  they  had 
been  sadly  inconsistent  as  to  traits  of  personal 
appearance,  and  as  to  times  and  jjlaces  they  had 
been  worse  than  uncertain  ;  for  they  had  positively 
and  circumstantially  stated  such  rencounters  to 
have  occurred  when  and  where  it  was  utterly  and 
unquestionably  impossible  that  they  should  have 
occurred.  They  had  described  Orton  in  a  variety 
of  ways.     Yet  none  of  the  descriptions  had  tallied 


218  TICHBOENE. 

with  any  accurate  delineation  of  Arthur.  Sup- 
posing the  testimony  of  these  witnesses  to  be  true, 
it  would  seem  that  some  other  person  had  borne 
the  name  of  Orton  in  Australia.  Arthur  had 
several  brothers,  some  of  whom  had  not  been 
heard  of  for  years  past ;  it  was  possible  that  one  of 
them  was  in  Australia.  Or  the  habit  of  freely 
appropriating  names,  without  much  regard  to  the 
lawful  ownership  thereof,  might  account  for  the 
circumstance. 

In  this  connection  it  was  further  a  singular  fact 
that  since  the  defendant  had  left  Australia  there  was 
no  proof  that  any  one  had  ever  seen  Orton  there. 
Only  one  witness  had  presumed  to  furnish  such 
evidence  ;  and  the  Chief  Justice  was  evidently  far 
from  convinced  by  his  testimony.  Yet  a  reward  of 
one  thousand  pounds  sterling  had  been  offered  for 
the  discovery  of  the  genuine  Arthur  Orton,  and 
the  news  of  this  fact  had  been  duly  promulgated  at 
"Wagga-Wagga,  where  defendant  said  he  had  left 
that  undiscoverable  person.  It  would  certainlj' 
seem  that  the  fact  of  his  existence,  as  a  person  dis- 
tinct from  the  defendant,  or  the  fact  of  his  death, 
were  worth  enough  money  to  have  brought  forward 
proof  of  either  circumstance,  if,  indeed,  either  were 
true.  It  is  surprising  that  a  "  claimant  "  for  the 
position  of  Arthur  Orton  did  not  start  up. 

In  weighing  the  testimony  of  witnesses  as  to  the 
identity  of  Roger,  his  Lordship  said  that  the  opinion 
of  nearly  all  who  were  nearest  to  him  and  most  in- 
timate with  him  was  to  be  placed  in  the  scale 
against  the  judgment  of  those  who  knew  him  com- 


TICHBORlSrE.  219 

paratively  little.  Besides  the  Dowager,  only  one 
member  of  the  family  had  appeared  on  behalf  of  the 
defendant,  and  he  was  a  person  who  knew  Roger 
very  slightly.  Ten  or  twelve  officers  had  testified 
for  the  Crown,  and  only  two  for  the  defence.  Of 
these  two,  one  had  been  carefully  subjected  to  pre- 
possessing influence,  and  the  other  had  had  but 
indifferent  opportunity  for  arriving  at  a  satisfactory 
conclusion.  The  witnesses  from  Paris  and  from 
Stonyhurst  were  quite  uniformly  convinced  of  the 
imposition.  Of  the  Carabineers  and  others,  several 
who  had  testified  to  the  identity  in  the  first  trial 
had  not  been  called  at  this  ;  and  few  had  been 
allowed  to  form  a  really  unbiassed  and  unprejudiced 
opinion.  Arts  had  been  practised  to  influence  them 
before  allowing  them  to  encounter  the  defendant. 
Moreover,  many  of  them  had  given  the  reasons 
upon  which  they  had  founded  their  belief,  and  most 
weak  and  insufficient  reasons  they  often  were.  All 
this  was  gone  into  with  great  minuteness  by  his 
Lordship  ;  but,  of  course,  it  is  possible  here  to  give 
only  this  gross  result.  Many  of  them  had  shown 
reluctance  or  embarrassment  when  forced  to  com- 
pare their  memories  of  Roger  with  the  likenesses 
of  him ;  and  some  failed  altogether  to  recognize 
those  portraits. 

Many  said  that  defendant  had  "  the  Tichborne 
back,"  the  "  Tichborne  face,"  &c.  ;  which  appear  to 
have  been  upon  the  large  and  bulky  scale ;  nor, 
indeed,  did  it  seem  reasonable  to  doubt  that  there 
were  many  points  of  resemblance  of  this  nature. 
But  unfortunately  for  their  value  the  acquaintances 


220  TICHBORNE. 

of  Roger  said  he  had  bj  no  means  these  traits,  but 
that  he  inherited  the  narrow  face  and  thin  figure  of 
his  mother.  They  nearly  all  agreed  in  attributing 
to  Roger  a  weak,  clear  voice  ;  whereas  defendant's 
was  coarse  and  husky. 

Two  witnesses  had  sworn  to  the  initials  A.  O.  on 
Arthur's  arm.  The  scar  on  defendant's  arm  was 
unaccounted  for,  save  by  the  story  of  one  witness, 
Lewis,  a  linen-draper's  assistant,  from  Alresford, 
who  told  an  incredible  tale  about  having  met  Roger 
and  Miss  Doughty  walking  in  the  park,  of  having 
b'een  "introduced"  by  the  lady  to  Roger,  and  of 
having  thereafter  been  a  friend  and  intimate  asso- 
ciate of  the  young  heir.  He  said  that  they  used  to 
meet  in  the  park  and  indulge  in  sundry  low  and 
vicious  practices,  and  that  one  day  he  accidentally 
Avounded  Roger  in  the  arm  with  a  stick.  The 
wound,  after  healing,  left  a  scar  such  as  appeared 
on  defendant's  arm.  The  meeting  and  "  introduc- 
tion" were  denied  with  ridicule  by  Lady  Radcliffe, 
and  the  whole  improbable  and  offensive  tale  was 
now  dismissed  by  the  Chief  Justice  quite  contempt- 
uously, as  unworthy  of  credit.  It  was  for  the  jury 
to  consider  the  probability  that  this  mark  was  the 
vestige  of  cauterization  inflicted  to  remove  the 
initials. 

It  was  a  remarkable  fact,  the  Chief  Justice  said, 
that  though  people  had  noticed  Roger's  slight 
French  accent  in  the  defendant  when  he  first  re- 
turned to  England,  yet  no  such  accent  had  been 
observable  at  Wagga-Wagga.  Such  a  peculiarity 
might  well  enough  have  been  lost  by  lapse  of  time, 


TICHBORNE.  221 

and  have  ceased  to  be  noticeable  in  Australia  ;  but 
that  it  should  return  as  consequent  upon,  or  con- 
comitant to,  the  return  to  England  was  quite  aston- 
ishing. 

In  reviewing  the  defendant's  reminiscences,  his 
Lordship  said  that  it  was  noteworthy  that  he  re- 
called, professedly  by  an  effort  of  memory,  things 
which  it  was  impossible  that  Roger  should  have 
remembered,  but  which  might  naturally  have  been 
told  to  him.  Yet  it  must  be  acknowledged  that  he 
had  given  some  proofs  of  memory  which,  if  genuine, 
were  very  astonishing,  and  hard  to  explain  upon 
any  theory  consistent  with  the  imposture.  But  the 
question  was,  whether  these  pretended  recollections 
were  really  such.  For  example,  he  had  described 
the  patterns  on  some  figured  shirts  worn  by  Roger  in 
England,  and  had  thus  fully  convinced  the  washer- 
woman at  Tichborne.  Also,  he  had  satisfied  the 
regimental  tailor  by  remembering  several  of  Roger's 
suits  of  clothes.  If  unaccounted  for,  save  upon  the 
theory  of  actual  memory,  these  circumstances  were 
almost  conclusive.  But  though  it  could  not  be 
proved  that  they  were  not  memory,  yet  it  could  be 
shown  that  they  might  not  be  so.  For  the  jury 
must  remember  that  much  of  Roger's  clothing  had 
been  kept  and  was  in  defendant's  possession  ;  and 
that  not  improbably  also  the  regimental  tailor's 
bills  might  still  be  preserved  and  might  have  been 
seen  by  him. 

The  way  the  defendant's  memory  grew  was  also 
remarkable.  Things  which  he  knew  nothing  about 
at  first,  he  afterward  showed  a  tolerable  knowledge 


222  TICHBORNE. 

of.  Every  question  put  to  him  served  as  a  sugges- 
tion for  investigation  and  inquiry,  which  had  been 
pursued  with  untiring  assiduity.  Often  it  happened 
the  things  which  he  found  that  he  ought  to  know, 
he  afterwards  came  to  know.  He  occasionally  tried 
guessing,  as  if  he  were  playing  at  a  game  of  conun- 
drums. For  example,  Roger  had  a  favorite  trick, 
which  he  pursued  with  much  care  and  elaboration, 
of  catching  flies,  placing  them  under  a  tumbler, 
and  stupefying  them  with  tobacco  smoke.  A  per- 
son who  was  familiar  with  this  sport  had  an  inter- 
view with  defendant  for  the  purpose  of  satisfying 
himself  on  the  point  of  identity.  He  suggested 
the  fly-amusement.  Defendant  remembered  that 
he  used  to  stick  pins  into  flies.  Being  told  that  he 
was  wrong,  he  had  nothing  further  to  submit  for 
consideration  at  the  time,  but  afterward  caused  a 
friend  to  write  a  letter  and  ask  whether  the  habit 
referred  to  was  not  that  of  eating  flies.  He  did 
not  succeed  in  suggesting  the  real  custom. 

A  circumstance  which  his  Lordship  found  espe- 
cially hard  to  explain  unless  the  defendant  were 
Orton,  was  that  when  coming  up  the  Thames,  on 
his  arrival  from  Australia,  he  asked  the  pilot 
whether  he  knew  a  river  pilot  by  the  name  of 
Ferguson.  The  pilot  said  he  knew  two  or  three 
of  that  name.  Defendant  said  he  meant  the  one 
who  used  to  pilot  the  Dundee  boats.  Now  the 
Dundee  boats  used  to  bring  the  Shetland  ponies  to 
the  Ortons ;  and  of  course  Arthur  knew  all  about 
them ;  but  Roger  could  not  be  supposed  to  have 
had  any  knowledge  whatsoever  of  them  or  their 
pilots. 


TICHBORNE.  223 

The  defendant  had  utterly  forgotten  every  thing 
about  Stonyhurst;  what  few  statements  he  had 
undertaken  to  make  were  erroneous.  He  could 
recollect  the  name  of  only  one  schoolmate  there, 
Arundell;  but  there  were  two  Arundells,  one  of 
them  a  special  friend  of  Roger  and  mentioned  in 
his  will;  yet  defendant  did  not  know  which  one 
it  was  that  he  remembered.  He  had  a  list  of  the 
names  of  some  of  the  fathers  there,  but  it  was 
significant  that  he  did  not  remember  those  who  had 
had  charge  of  Roger's  education,  and  that  he  did 
profess  to  remember  others  with  whom  Roger  had 
had  little  or  nothing  to  •  do.  The  studies,  the 
Christmas  plays,  the  vacations,  every  thing  in 
short,  was  a  blank  to  defendant.  He  said  he  left 
in  disgrace  in  November,  1848,  whereas  Roger  left, 
under  no  discreditable  circumstances,  in  the  sum- 
mer at  the  end  of  the  regular  term.  It  was  for  the 
jury  to  consider  whether  such  forgetfulness  was 
possible. 

So  likewise  he  had  misstated  pretty  much  every 
thing  about  his  obtaining  his  commission.  His 
military  life  in  Ireland,  where  Roger  was  for  two 
years  and  seven  months,  had  been  for  the  most  part 
forgotten  altogether ;  and  such  few  incidents  as  he 
undertook  to  relate  were  grossly  erroneous,  and,  in 
one  instance  at  least,  he  narrated  a  story  which  was 
wholly  fictitious.  He  was  examined,  he  said,  "  in 
the  landmarks  of  England."  Being  asked  to  ex- 
plain this,  he  said :  *'  The  landmarks  of  England 
insinuate  the  formation  of  England  at  different 
points."     The  Cliief  Justice  said  this  was  incom- 


224  TICHBOENE. 

prehensible  nonsense,  explainable  only  by  supposing 
that  the  defendant  had  heard  the  name  of  the  book 
called  "Landmarks  of  English  History."  He  said 
Roger's  examination  for  his  commission  took  place 
at  London,  whereas  it  took  place  at  Tichborne,  and 
that  he  "passed,"  whereas  Roger  did  not  pass,  but 
only  received  a  certificate  of  fitness  in  certain 
branches. 

But  the  most  remarkable  forgetfulness  was  that 
of  the  correspondence  with  Lady  Doughty.  Ninety- 
six  letters,  written  during  his  stay  in  Ireland,  were 
still  preserved  ;  some  might  have  been  lost ;  and, 
supposing  there  were  in  round  numbers  one  hun- 
dred, it  made  an  average  of  one  letter  every  fort- 
night. These  referred  to  every  thing  that  was  most 
important  and  interesting  to  Roger,  his  habits  of 
life,  his  love  for  his  cousin :  it  was  a  confidential 
correspondence.  It  was  all  conducted  between 
Roger  and  his  aunt ;  there  was  not  a  trace  of  any 
letters  being  exchanged  between  him  and  Miss 
Doughty.  Yet  defendant  had  wholly  forgotten  to 
whom  he  wrote,  had  been  very  uncertain  whether 
he  wrote  at  all,  and  knew  nothing  of  the  nature  or 
subjects  of  the  correspondence.  Gentlemen,  said 
his  Lordship  emphatically,  I  do  not  know  that  in 
the  whole  range  of  the  case  there  is  any  thing,  to 
my  mind,  so  strange  as  that ;  and  the  question  is 
whether,  as  sensible  men,  you  can  believe  that  such 
a.  correspondence  as  that  could  have  passed  from 
the  memory  of  the  living  man.  ...  I  know  no  bet- 
ter test  that  could  be  put  to  the  memory  of  any  one 
than  that. 


TICHBOKNE.  225 

The  ignorance  of  the  defendant  in  military  mat- 
ters was  astonishing.  He  thought  a  troop  was  the 
same  as  a  squadron,  though  a  squadron  contains  two 
troops.  He  said  his  regiment  contained  upwards  of 
nine  hundred  men,  whereas  it  was  only  three  hun- 
dred strong.  Could  a  man  who  had  been  three  years 
in  the  service  have  been  so  ignorant  ? 

Defendant's  total  oblivion  as  to  the  French  lan- 
guage and  literature  was  a  most  striking  point.  Up 
to  the  last  that  had  been  known  of  Roger  he  had 
spoken,  written,  and  read  French  ;  indeed  he  seems 
to  have  been  very  familiar  with  the  books  of  that 
nation,  and  he  was  accompanied  on  board  the 
"  Bella  "  by  a  French  valet.  Yet  defendant  knew 
not  a  word  of  the  language  ;  he  even  mistook  Pierre 
ion  jJpre^  so  that  he  was  induced  to  say  that  PieiTO- 
Corneille  was  the  father  Corneille.  The  smatter- 
ing of  Spanish  which  had  been  picked  up  in  South 
America  had  staid  by  the  defendant.  How  could 
it  be  explained,  then,  that  the  so  much  more 
familiar  French  had  totally  disappeared  from  his 
memory? 

The  business  affairs  of  the  family  had  been  well 
known  by  Roger,  They  were  certainly  of  a  most 
interesting  nature  to  him,  and  lie  had  paid  careful 
attention  to  them,  and  manifested  strong  feeling 
concerning  them.  Defendant  was  not  only  wholly 
ignorant  of  them,  but  had  asserted  many  absurdities, 
and  not  a  few  impossibilities  in  undertaking  to  speak 
of  them.  Could  Roger  Tichborne  have  fallen  into 
such  confusion  on  the  subject  ? 

As  for  the  love  affair,  said  his  Lordship,  the  de- 
15 


226  TICHBOB^TE. 

fendant's  answers  showed  a  state  of  mind  which 
seemed  inconceivable  in  the  case  of  Roger.  "  The 
heart's  wounds  leave  scars  quite  as  deep  and  lasting 
as  those  which  steel  or  fire  impress  upon  the  surface 
of  the  outward  form."  Yet  the  defendant  remem- 
bered nothing.  He  knew  that  there  had  been  an 
engagement  and  that  it  had  been  broken  oif,  and 
beyond  this  he  had  no  knowledge.  When,  by 
whom,  for  what  cause,  under  what  circumstances 
it  had  been  so  broken,  he  was  unable  to  tell.  His 
own  feelings  caused  by  that  event,  and  what  Avas 
said  between  himself  and  his  cousin  about  it,  he 
professed  to  be  unable  to  recall ;  indeed  he  even 
pretended  that  the  two  separated  lovers  met  and 
talked  together  without  mentioning  the  subject  at 
all !  Was  such  oblivion  credible  if  the  defendant 
were  really  Roger  ?  His  love  was  not  then  a  dead 
or  dying  flame.  On  the  contrary,  his  subsequent 
letters  from  South  America  show  that  he  was  con- 
stant to  his  avowed  affection,  and  still  longed  and 
hoped  for  a  marriage  with  his  cousin. 

His  Lordship  came  next  to  the  discussion  of  the 
sealed  packet  and  the  seduction.  It  is  impossible 
to  give  any  abstract  of  what  he  said  which  would 
be  of  value  in  adding  to  the  particulars  already  set 
forth.  Suffice  it  to  say  that  his  charge  was  nothing 
less  than  an  excoriation  of  the  defendant !  He 
charged  him  with  making  "  crafty  "  statements ; 
and  assertions  as  to  time  and  place  which  were 
proved  to  be  false  and  could  hardly  be  mistakes. 
If  anybody  can  hereafter  place  the  slightest  faith 
in  this  story  it  certainly  is  not  the  fault  of  Sir 


TICHBORNE.  227 

Alexander  Cockburn.  His  views  were  undis- 
guised, and  it  must  be  confessed  that  after  reading 
what  he  said,  it  seems  undeniable  that  the  facts  when 
broufrht  together  in  a  clear  narrative  could  have 
been  made  to  bear  any  other  aspect.  But  if  it  was 
impossible  by  reason  of  their  own  nature  to  recite 
them  in  such  a  way  as  to  appear  impartial,  it  must 
be  confessed  that  the  Chief  Justice  did  not  seem 
to  think  it  worth  while  even  to  make  the  effort. 
He  delivered  a  superb  argument  in  the  shape  of  a 
"  summing  up,"  and  treated  the  judicial  function 
with  that  cavalier  neglect  of  which  no  man  living 
is  so  well  capable  as  he. 

The  evidence  concerning  physical  marks  he 
brought  together  toward  the  close  of  his  charge. 
There  was  a  brown  mark  on  defendant  and  abun- 
dant trustworthy  testimony  showed  that  no  such 
mark  was  on  Roger.  The  defendant's  mtnesses 
to  this  point  had  not  been  verj^  satisfactory.  The 
mark  was  congenital,  and  if  Roger  had  it  not,  then 
this  defendant  was  not  Roger.  There  were  only 
two  persons  who  swore  to  any  such  malformation 
of  Roger's  thumb  as  appeared  upon  the  thumb  of 
the  defendant ;  one  of  them  was  the  notorious 
"  Captain "  Brown,  the  other  a  bar-maid  who 
appeared  scarcely  more  worthy  of  credit.  The 
defendant  had  weU  developed  and  pendent  lobes 
to  his  ears,  whereas,  if  the  daguerreotypes  could 
be  trusted,  Roger  had  small  lobes  growing  close  to 
his  cheeks.  The  defendant  had  the  scar  of  a 
seton,  and  he  had  carefully  narrated  the  medical 
treatment  applied  to  it,  which  was  appropriate  for 


228  TICHBOENE. 

a  seton  and  not  appropriate  for  an  issue.  Roger 
had  been  bled  at  Canterbury,  and  the  scars  could 
not  yet  have  disappeared.  The  punctures  were 
made  on  both  arms,  both  feet,  and  at  the  temporal 
artery.  Defendant  showed  only  scars  on  his  ankles, 
and  they  were  at  a  point  where  there  was  no  vein, 
and  where  no  skilful  physician  could  have  cut  for 
bleeding.  There  was  a  scar  on  defendant's  arm, 
which  he  himself  could  not  account  for ;  a  most 
singular  circumstance !  It  was  where  some  gov- 
ernment witnesses  had  sworn  that  the  initials  A.  O. 
had  been  tattooed  on  Arthur  Orton.  It  was  not 
proved  that  it  was  the  scar  of  cauterization,  but  it 
was  admitted  that  it  might  be. 

The  evidence  of  Roger's  having  been  tattooed 
was  very  strong.  Witnesses  had  seen  it  at  such 
various  times,  when  he  could  not  expect  it  to  be 
seen,  that  the  theory  suggested  by  the  defence 
that  it  was  a  mere  temporary  mark  made  by  him 
in  frolic  seemed  untenable.  Moreover  it  was  always 
the  same  emblems  and  letters  in  the  same  place. 
The  witnesses  who  had  not  seen  it  had  made  a  very 
discreditable  appearance ;  some  of  them  obviously 
falling  either  into  error  or  falsehood.  Yet  if  Roger 
was  tattooed  it  was  certain  that  this  defendant  was 
not  Roger.  Here  again  his  Lordship  made  his  own 
opinion  very  conspicuous. 

The  letters  both  in  respect  of  handwriting  and 
of  style  seemed  to  his  Lordship  to  furnish  most  val- 
uable evidence.  No  one  could  pretend  that  the 
chirography  of  the  defendant  resembled  that  of 
Roger.     Moreover   the   free   flow    of    ideas,    the 


TICHBORNE.  229 

appearance  of  cultivation  and  right  feeling,  notice- 
able in  Roger's  letters  was  wholly  wanting  in  de- 
fendant's. Roger  sometimes  made  little  slips  in 
grammar  or  spelling,  but  rarely.  Defendant's  cor- 
respondence was  full  of  such  blemishes.  Roger 
could  hardly  have  wiitten  "  worrit  "  and  "  busted." 

On  Saturday,  February  28,  having  consumed 
eighteen  working  days  in  "  summing  up,"  the 
Chief  Justice  proceeded  to  sum  up  this  summing 
up.  He  selected  every  point  which  told  against 
the  defendant,  stated  it  with  an  incisive  brevity 
which,  if  impressive,  was  also  rancorous,  and  for 
the  space  of  nearly  two  hours  presented  an  appear- 
ance as  thoroughly  unjudicial  as  has  been  beheld 
upon  the  bench  in  England  for  many  generations. 
The  whole  tone  of  his  remarks  resembled  a  chal- 
lenge to  the  jury  to  bring  in  a  verdict  of  acquittal, 
as  he  recited  fact  after  fact,  and  seemed  to  dare  the 
jurors  to  refuse  to  be  convinced  by  each  one  of 
them  of  the  prisoner's  guilt.  Never  was  a  stronger 
belief  expressed  by  a  Judge  concerning  the  merits 
of  a  case  ;  never  a  more  resolute  determination 
manifested  to  control  the  result. 

He  had  been  accused,  he  said,  of  partiality ;  he 
had  been  assailed  by  critics  who  presumed  to  think 
that  they  knew  his  business  better  than  he  knew 
it.  But  he  had  been  governed  by  a  stern  sense  of 
duty.  "  Gentlemen,"  cried  he,  "  I  cannot  invent 
facts,  nor  by  the  utmost  effort  of  ingenuity  can  I 
find  explanations  which  have  no  reality  in  point  of 
fact.  In  my  opinion  a  Judge  does  not  discharge  his 
duty   who  contents  himself   with  being   a  mere 


230  TICHBOKNE. 

recipient  of  evidence,  which  he  is  afterwards  to 
reproduce  to  the  jury  without  pointing  out  the  facts, 
and  the  inferences  to  which  they  naturally  and 
legitimately  give  rise.  It  is  the  business  of  the 
Judge  so  to  adjust  the  scales  of  the  balance  that 
they  shall  hang  evenly ;  but  it  is  his  duty  to  see  that 
the  facts,  as  they  arise,  are  placed  in  the  one  scale 
or  the  other,  according  as  they  belong  in  the  one 
or  the  other.  It  is  his  business  to  take  care  that 
the  evidences  which  properly  arise  from  the  facts 
are  submitted  to  the  consideration  of  the  jury,  with 
the  happy  consciousness  that  if  he  goes  wrong 
there  is  the  judgment  of  twelve  men,  experienced 
in  the  every-day  concerns  of  life,  to  set  right  any 
thing  in  respect  of  which  he  may  have  erred.  If 
the  facts  make  one  scale  kick  the  beam,  it  is  the 
fault  of  the  facts,  not  of  the  Judge." 

His  Lordship  said  that  he  and  his  colleagues  had 
sought  for  solutions  of  many  facts  which  pressed 
hardly  upon  the  defendant,  and  if  they  had  been 
unable  to  find  such  solutions  it  was  not  the  fault  of 
their  desire  to  do  strict  and  impartial  justice. 
While  it  is  the  business  of  judicial  action  to  protect 
virtue ;  so,  on  the  other  hand,  it  is  the  duty  of 
the  Judge  to  see  that  the  guilty  do  not  escape.  In  the 
conviction  of  the  innocent,  and  in  the  escape  of  the 
guilty,  as  the  old  saying  is,  lies  the  condemnation 
of  the  Judge,  —  of  the  judges  of  the  fact  as  well  as 
of  the  presiding  Judge.  You  must  take  care  of 
the  innocent,  but  also  you  owe  it  to  society  to  see 
that  the  guilty  man  does  not  go  free. 

You  have  been  asked  to  give  to  the  defendant 


TICHBORNE.  231 

the  benefit  of  any  doubt  you  may  feel.  He  is 
entitled  to  the  benefit  of  the  doubt  which  a  ra- 
tional, sensible  man  may  fairly  entertain ;  but  not 
to  the  doubt  of  a  vacillating  mind  which  has  not 
the  moral  courage  to  decide,  but  shelters  itself  in 
a  vain  and  idle  scepticism.  His  Lordship  could 
not  ask  one  or  two  mon  who  might  differ  from  the 
ten  or  eleven  othere  to  sacrifice  his  or  their  pro- 
found and  conscientious  conviction  ;  but  he  urged 
that  agreement  should  be  reached  if  possible.  It 
was  desirable  not  only  for  the  purpose  of  ending 
such  a  litigation  as  this  had  been,  but  also  in  order 
to  avoid  creating  in  the  popular  mind  that  intense 
dissatisfaction  which  must  arise  if  this  trial  should 
be  rendered  abortive  by  the  dissensions  of  the  jury, 
and  which  might  lead  to  the  introduction  of  a 
change  in  the  established  system,  —  a  change  which 
his  Lordship  would  deprecate,  though  it  might  well 
be  generally  approved  as  necessary. 

He  further  referred  to  the  insults  that  had  been 
heaped  by  the  counsel  for  the  defendant  upon  the 
Judges,  and  to  the  moral  intimidation  to  which  both 
Judges  and  jury  had  been  subjected  by  threats  that 
they  should  be  handed  down  with  infamy  to  pos- 
terity if  the  defendant  should  be  convicted,  but 
should  be  received  with  popular  "ovations"  if  he 
should  be  acquitted.  And  now,  said  his  Lordship^ 
I  have  done ;  I  have  tried  to  discharge  my  duty. 
For  your  part,  the  verdict  which  you  shall  render 
will  assuredly  be  received  by  all  persons,  who  are 
not  either  fools  or  fanatics,  as  the  judgment  of 
twelve  men  who  have  brought  vigilant  attention 


232  TICHBOENE. 

and  marked  and  remarkable   intelligence   to  the 
consideration  of  the  cause. 

Mr.  Justice  Mellor  added  a  few  words  justifying 
the  action  of  the  Court  in  its  various  commitments, 
fines,  and  reprimands  inflicted  for  contempts  of 
court  committed  chiefly  by  the  daily  press. 

Mr.  Justice  Lush  expressed  his  concurrence  in 
the  views  of  the  duty  of  a  Judge,  as  the  same  had 
been  set  forth  by  the  Chief  Justice.  Some  persons 
were  of  opinion  that  the  more  cogent  the  facts,  the 
more  should  the  Judge  try  to  neutralize  them. 
But  he  thought  that  the  duty  of  the  Judge  was  to 
assist  the  jury  in  discovering  the  truth,  without 
considering  whether  it  might  make  for  one  side  or 
the  other. 

A  few  minutes  after  twelve  o'clock,  at  noon,  the 
jury  retired.  The  defendant  sat  at  his  green  baize 
table,  "  nervous  and  anxious."  The  densely 
crowded  court-room  was  alive  with  most  intense 
excitement.  Every  one  was  surprised  when,  at 
only  thirty-three  minutes  after  twelve,  the  jury  came 
in  and  reported  that  they  had  agreed  upon  a  ver- 
dict. The  defendant  stood  up,  "  confused  and 
abashed."  The  foreman  read  the  verdict :  "  We 
find,  firstly,  that  the  defendant  is  not  Roger  Charles 
Doughty  Tichborne  ;  secondly,  we  find  that  de- 
fendant did  not  seduce  Miss  Catherine  Doughty, 
now  Lady  Radcliffe  ;  and,  further,  we  find  that 
there  is  not  the  slightest  evidence  that  Roger 
Charles  Doughty  Tichborne  was  ever  guilty  of  un- 
due familiarity  with  his  cousin,  Lady  Radcliffe,  on 
any  occasion  whatsoever  (applause)  ;  thirdly,  we 
find  that  defendant  is  Arthur  Orton." 


TICHBORNE.  233 

A  paper  was  also  handed  by  the  foreman  to  the 
Chief  Justice,  and  was  by  his  Lordship  read  aloud, 
as  follows :  — 

The  jury  desires  to  express  its  opinion  that  the  charges 
of  bribery,  conspiracy,  and  undue  influence  brought  against 
the  prosecution  in  this  case  are  entirely  devoid  of  founda- 
tion. And  they  regret  •  exceedingly  the  violent  language 
and  demeanor  of  the  leading  counsel  for  the  defendant  in 
his  attacks  upon  the  conduct  of  the  prosecution  and  upon 
several  of  the  witnesses  produced  in  the  case. 

(Signed)  H.  F.  Dickens,  Foreman. 

The  gratification  of  the  old  partisan  who  had 
been  managing  the  trial  and  who  had  spared  no 
care  or  pains  in  the  training  of  his  twelve  docile 
jurors  may  be  imagined.  He  must  have  felt  like 
a  schoolmaster  whose  pupils  have  made  good  show 
at  a  public  examination.  They  might  have  been 
relied  upon  to  take  the  same  action  had  he  not  sub- 
jected them  to  such  vigorous  tutelage,  but  neither 
this  fact  nor  the  righteousness  of  the  verdict  and 
accompanying  rebuke  can  in  any  degree  justify  his 
conduct. 

Mr.  Justice  Mellor  rose  to  deliver  the  sentence. 
He  said  that  the  Judges  fully  concurred  in  the  ver- 
dict, and,  indeed,  no  person  free  from  prejudice,  and 
who  had  intelligently  followed  the  evidence,  could 
well  have  arrived  at  any  other  conclusion.  He  ad- 
dressed the  defendant  in  terms  of  great  severity. 
Wicked  and  nefarious  as  was  his  attempt  to  present 
himself  as  Roger  Tichbome,  and  so  to  obtain  the 
vast  property  which  of  right  belonged  to  the  infant 
heir,  this  crime  seemed  almost  to  sink  into  insignifi- 


234  TICHBORNE. 

cance  beside  the  more  infamous  perjury  concerning 
Lady  Radcliffe.  Fortunately  that  cowardly  cal- 
umny had  been  immediatelj'  and  perfectly  refuted, 
and  the  base  charge  had  been  shattered  and  exposed. 
The  Court  grieved  that  the  sentence  was  much  too 
light  to  constitute  a  proper  punishment  for  such 
offences  ;  it  was  seven  years  of  penal  servitude 
upon  the  lirst  count,  and  thereafter,  seven  years 
more  of  penal  servitude  upon  the  second  count. 

The  defendant  shook  hands  with  his  counsel,  Dr. 
Kenealy,  was  hurried  quietly  out  of  the  court  room, 
his  person  was  searched,  and  he  was  then  placed 
in  the  police  wagon  and  driven  to  Newgate.  There 
he  was  put  into  a  cell,  dimly  lighted,  furnished  with 
a  straw  pallet  and  a  wooden  table  and  chair. 
Amid  these  surroundings  he  was  left  to  his  medita- 
tions, the  place  of  his  final  incarceration  not  having 
yet  been  determined  upon.  He  behaved  witli  a  per- 
fectly tranquil  coolness,  not  seeming  surprised  or 
disheartened,  and,  indeed,  seldom  speaking  at  all. 

The  throngs  gathered  in  Palace  Yard  around  the 
exit  from  Westminster  Hall,  though  dense,  mani- 
fested no  propensity  to  become  disorderly,  and 
though  they  had  seemed  so  friendly  to  the  defendant 
during  the  trial,  they  appeared  to  have  anticipated 
its  result,  and  to  have  no  fault  to  find  therewith.  It 
seems  that  in  the  long  time  that  the  trial  had  been 
pending,  the  real  truth  and  justice  of  the  case  had 
had  time  gradually  to  filter  down  through  the  peo- 
ple, till  even  the  ignorant  rabble  came  at  last  to 
recognize  the  unquestionable  fact  of  guilt. 


^Law  Review,  October,  1870.] 

THE     TRIALS     OF    TROPPMANN    AND 
PRINCE    BONAPARTE. 


I. 

TROPPMANN. 


The  story  of  the  massacre  of  the  Paiitin  fields 
must  still  be  freshly  remembered  by  all  whom  these 
pages  are  likely  to  reach.  Neither  the  temptation 
to  the  act  nor  the  act  itself  furnished  any  legitimate 
cause  for  peculiar  interest.  The  purpose  was 
plunder.  The  plan  and  execution  comprehended 
only  a  coarse  and  brutal  slaughter.  The  criminal 
was  quickly  caught,  tried,  convicted,  and  executed. 
Yet  in  spite  of  the  threadbare  vulgarity  of  every 
feature  of  the  villany,  its  very  monstrousness  and 
cold-blooded  ferocity  awoke  throughout  all  Europe 
and  the  United  States  that  eager  curiosity  which 
every  mau  calls  repulsive  in  his  neighbor,,  but  en- 
tertains and  satiates  in  himself. 

The  whole  family  of  Kinck  were  slain.  The 
father  and  eldest  son  perished  separately,  apart 
from  and  shortly  before  the  rest.  The  mother  and 
the  five  younger  children  were  immolated  and 
buried  together  in  the  Pantin  field.  The  last  slain 
were  the  first  discovered ;  and  while  an  unnatural 
and  horrible  suspicion  still  pointed  to  the  father  and 


236  .  TROPPMAIW. 

eldest  son  as  the  slayers,  Troppmann  was  neverthe- 
less seized  upon  a  vague  misgiving  aroused  by  his 
own  confused  and  self-condemning  appearance.  He 
took  advantage  of  this  first  shocking  hypothesis  to 
make  a  partial  confession,  to  the  effect  that  he  had 
been  an  accomplice  of  Kinck  pere  in  the  murder  of 
the  mother  and  children.  This  falsehood  being 
soon  exposed  by  the  discovery  of  the  bodies  of  the 
father  and  son,  he  next  confessed  that  he  himself 
was  the  sole  executioner  of  all  the  victims.  Soon 
after  he  again  changed  his  tale,  and  asserted  that 
he  had  accomplices  in  the  deed,  a.nd  that  they  had 
done  all  the  worst  and  more  active  portions  of  the 
work.  This  remained  as  his  last  statement  and 
was  the  ground  which  he  took  at  the  trial.  Natu- 
rally all  this  rendered  the  belief  in  his  guilt  univer* 
sal.  The  world  could  not  disbelieve  what  he 
himself  would  not  deny.  Wherefore,  though  the 
latest  form  of  his  confession  left  his  guilt  to  be 
formally  established,  yet  the  real  questions  to  be 
determined  by  the  jurors  were  only  whether  he 
was  the  sole  murderer,  or  only  a  sharer  in  the 
crime,  and  in  the  latter  case  whether  he  was  an 
active  participant  or  a  mere  looker-on  giving  slight 
and  insignificant  aid.  Such  uncertainty  as  there 
was  technically,  if  not  substantially,  did  not  attach 
to  his  guilt,  but  only  to  the  degree  of  his  guilt. 
In  the  contest  his  counsel  appears  to  have  given 
him  but  feeble  assistance.  In  main  part  he  did  his 
own  battle,  single-handed,  against  the  lawyers  and 
the  witnesses  for  the  prosecution,  and  against  the 
more  dangerous  and  hostile  Court  itself. 


TROPPMANN".  237 

The  Court  was  opened  and  an  immense  throng 
pressed  in.  Members  of  the  corps  diplomatique^ 
magistrates,  highly  respectable  and  unctions  offi- 
cials, especially  ladies  of  rank  in  great  numbers, 
also  multitudes  of  fair  creatures  not  to  be  elegantly 
named  in  English,  crowded  the  benches  and  even 
dispossessed  the  advocates  of  their  customary  seats. 
The  reporter  for  '•'■  Le  Figaro  "  found  himself  obliged 
at  the  close  of  the  trial  to  furnish  an  explanation  or 
apology  for  grave  defaults  in  his  references  to  the 
audience.  "  And  now,"  he  says,  "  let  me  add  a 
brief  postscript  —  the  farce  after  the  drama  —  to 
defend  myself  from  the  charges  preferred  against  me 
by  divers  of  my  lady  readers.  They  are  astonished 
that  I  should  have  been  so  far  wanting  in  ordinary 
politeness  as  not  to  have  named  some  of  the  ladies 
who  took  part  in  (assistaient  aux)  the  Troppmann 
trial.  My  excuse  is  simj)le  :  I  noticed  in  the  audi- 
ence des  dames  et  des  femmes  (translation  would 
involve  the  loss  of  the  peculiar  flavor  of  the  words). 
And  that  I  might  not  run  the  risk  of  placing  beside 
a  respectable  name  the  name  d'une  celehrite  ga- 
lante^  I  chose  to  hold  my  tongue.  1  kept  careful 
watch  over  myself  all  the  while,  in  order  that  I 
might  be  driven  into  no  necessity  for  making 
apologies,  for  which  I  have  no  taste."  Such  was 
the  various  but  distinguished  throng  brought  to- 
gether by  French  tastes  and  French  manners  to 
witness  the  baiting  by  M.  le  President  of  a  low- 
born mechanic,  the  murderer  of  a  family  of  igno- 
rant peasants,  of  whom  the  mother  at  least  was 
unable  even  to  read.     There  was  no  element  in 


238  TKOPPMANN. 

the  whole  affair  to  excuse  or  palliate  this  morbid, 
and,  at  least  in  the  women,  odious  curiosity. 

Very  properly  did  "  Le  Figaro "  speak  of  the 
trial  as  a  drama.  Not  only  was  the  audience  such 
as  is  wont  to  assemble  at  an  opera,  but  the  stage 
"  properties  "  were  likewise  there,  displayed  with 
managerial  art.  A  large  table  occupied  a  promi- 
nent position,  and  upon  it  were  spread  out  the 
blood-stained  garments  in  which  the  victims  had 
been  exhumed ;  tools  found  in  the  Pantin  field,  and 
which  it  was  supposed  had  been  used  in  digging 
the  shallow  ditch  wherein  the  bodies  had  been 
imperfectly  concealed,  and  divers  articles  belong- 
ing to  the  slain  and  found  upon  Troppmann  at  the 
time  of  his  arrest.  Kinck  pere  was  supposed  to 
have  been  poisoned  with  prussic  acid  ;  so  upon  the 
table  stood  certain  bottles  holding  chemical  com- 
pounds, also  a  pleasant  jar  containing  the  stomach 
and  viscera  of  the  deceased,  which  had  been  sub- 
jected to  chemical  investigation.  Beside  these  lay 
the  broken  knife  with  which  it  appeared  that  the 
mother  and  two  of  the  children  had  been  stricken 
down  and  lacerated.  It  cannot  be  denied  that  the 
mise-en-scene  was  artistic  and  effective. 

The  acte  d* accusation  was  read.  It  was  a  docu- 
ment formidable  by  reason  of  its  length,  but  vastly 
more  formidable  by  reason  of  the  extraordinary 
nature  of  its  contents.  It  was  a  cross  between  an 
opening  speech  for  the  prosecution,  and  such  an 
article  as  some  skilled  purveyor  of  sensational  mat- 
ter for  the  newspapers  might  prepare  for  the  delec- 
tation of  his  readers.     The  circumstances  attendant 


TEOPPMANN.  '239 

upon  the  discovery  of  the  bodies  ;  the'  shocking 
details  of  their  appearance,  the  several  contradic- 
tory confessions  of  the  accused,  the  tale  of  his 
arrest,  all  the  circumstances  tending  to  fasten  the 
crime  upon  him,  were  given  at  length.  In  addition 
to  this  his  whole  previous  life  was  passed  in  review. 
His  moral,  mental,  and  physical  development  was 
traced.  The  books  he  had  read,  the  pursuits  he 
had  undertaken,  the  wishes  he  had  expressed,  were 
all  detailed.  A  thorough  analysis  of  character, 
mind,  and  physique  was  made.  From  all  this 
heterogeneous  material  conclusions  were  drawn, 
and  all  in  such  shape  that  one  who  had  no  extrin- 
sic knowledge  whatsoever  in  the  premises  must 
have  seen  at  once  that  the  material  had  been  gath- 
ered and  the  inferences  elicited  by  hands  inten- 
tionally hostile,  and  with  the  obvious  and  consistent 
purpose  of  leading  up  to  the  one  capital  result,  the 
commission  of  the  murder  by  the  accused.  The 
moral  to  be  drawn  from  a  portion  of  this  insidious 
narrative,  a  moral  which  at  the  time  was  not  lost 
upon  certain  intelligent  and  observant  critics,  is 
not  likely  to  be  popular  in  these  days.  This  moral 
was  that  education  and  a  desire  for  knowledge  are 
per  se  dangerous  and  suspicious  things,  and  consti- 
tute proper  evidence  of  guilty  premeditation.  Had 
Troppmann  not  known  how  to  read,  it  could  not 
have  been  recited  as  bearing  seriously  against  him 
that  he  had  read  some  books  and  romances  not 
likely  to  have  an  improving  influence.  Had  he 
not  developed  a  strong  taste  for  chemistry,  it  could 
not  have  been  peremptorily  urged  that  he  knew 


240  TEOPPMANK. 

how  to  make  prussic  acid,  and  had  therefore  poi- 
soned Kinck  the  father.  In  view  of  his  confession, 
his  ability  to  make  the  acid  might  have  been  shown. 
But  the  books  which  he  had  read  were  less  fitting 
evidence.  In  either  case  the  emphatic  dwelling 
upon  these  facts  in  the  acte^  which  was  properly 
only  the  indictment  or  bill,  was  inexcusable,  at 
least  according  to  our  notions. 

The  acte  having  been  read,  Monsieur  le  Presi- 
dent entered  upon  his  peculiar  duty.  This  func- 
tionary has  the  task  of  cross-examining,  —  it  might 
as  well  be  said  at  once,  the  task  of  badgering  and 
bullying  the  accused,  with  the  view  of  driving  him 
into  confession,  admissions,  or  self-contradiction. 
As  he  is  by  no  manner  of  means  a  judge,  so  the 
French  are  honest  enough  to  refrain  from  bestow- 
ing upon  him  that  honorable  title.  They  call  him, 
in  unprofessional  nomenclature,  "the  President." 

This  personage  now  bade  Troppmann  rise,  re- 
peated to  him  his  name,  age,  birth,  and  other  sta- 
tistical matters,  and  then  proceeded  as  follows; 
"  Your  family  was  in  troubled  circumstances.  Your 
father's  affairs  were  in  a  very  bad  way.  Your 
father  had,  for  a  long  time,  been  vexed  by  inces- 
sant lawsuits.  You  yourself  were  a  clever  fellow 
and  a  very  skilful  mechanic.  You  were  your  moth- 
er's spoiled  child.  Yes,  as  ill  luck  would  have  it, 
you  were  the  object  of  her  especial  affection.  Where 
you  were  concerned,  she  was  so  weak  that  she  al- 
ways let  you  have  your  own  way,  and  under  all 
circumstances  she  took  your  part.  Till  what  age 
did  you  stay  with  her  ?  " 


TROPPMANN.  241 

Having  obtained  an  answer  to  this  sudden  ques- 
tion, M.  le  President  returns  to  his  portrait-paint- 
ing :  "  From  youth  your  character  appears  to  have 
been  exceptional  in  a  young  man.  You  were 
secretive  and  taciturn,  thoughtful,  and  you  had 
no  intimates.  Already  the  violence  of  your  temper 
was  excessive.  Your  sole  ambition  was  to  acquire 
riches  by  any  possible  means.  I  find  evidence  of 
all  this  in  the  information.  One  day,  as  we  hear, 
you  quarrelled  with  your  brother  Edmond  ;  you 
struck  him  in  the  forehead  with  a  hammer,  and,  as 
the  blood  spurted  from  the  wound,  he  cried  :  '  Thou 
art  another  Cain.'  "  The  prisoner  eagerly  denied 
that  there  was  any  foundation  for  this  story.  M. 
le  President :  "  We  have  not  summoned  your 
brother.  We  felt  that  to  do  so  would  be  too 
cruel.  But  he  has  spoken  of  you  in  these  terms: 
'  My  brother  is  a  dog  that  bites,  but  barks  not.'  " 
Prisoner :  "  My  brother  never  uttered  such  a 
word!" 

After  adding  a  few  insignificant  touches  to  his 
portrait,  the  president  laid  on  one  that  was  mas- 
terly :  "  Well,  at  Roubaix  no  one  ever  noticed  in 
you,  though  you  were  then  not  twenty  years  old, 
any  of  those  irregular  habits  which  are  usually 
found  in  young  men  of  that  age.  You  came  in 
regularly  at  eleven  o'clock  every  night.  But  still 
you  talked  constantly  of  your  craving  for  riches. 
A  girl,  Sophie  Mayer,  whom  you  had  for  a  mis- 
tress, has  said  so."  A  pregnant  sentence !  The 
presiding  officer  at  this  judicial  sitting  throws  in 

the  face  of  the  prisoner  the  heinous  charge  of  regu- 

16 


242  TKOPPMAJSTN. 

lar  habits.  But,  quite  a  la  mode  Frangaiae,  he 
shows  his  idea  that  a  young  man  may  be  so  exem- 
plary as  to  become  an  object  of  suspicion,  and  may 
yet  at  the  same  time  be  keeping  a  mistress,  and  all 
at  the  unripe  age  of  less  than  twenty  years. 

M.  le  President  continues :  "  When  you  came 
home  to  Cernay  you  found  your  parents  in  a 
destitute  condition.  Thereupon  you  devised  this 
abominable  plan  for  the  immolation  of  the  Kinck 
family." 


The  president,  as  at  ore  time  and  another  he 
elicits  from  the  prisoner  statements  contradictory 
of  some  one  of  the  various  inconsistent  confessions 
previously  made  by  him,  is  wont  bluntly  to  say  to 
him :  "  You  lied,  then,  Troppmann,  when  you  said 
so  ?  "  He  uses  the  French  verb  mentir,  which, 
unless  we  mistake,  is  no  less  insulting  and  offen- 
sive a  word  than  our  own  "  to  lie  :  "  "  vous  mentiez 
alors,  Troppmann,  quand,^*  &c.,  &c. 

Though  Troppmann  adhered  steadily  to  his  as- 
sertion that  he  had  accomplices  who  were  the  chief 
criminals,  yet  he  obstinately  refused  to  give  up 
their  names  or  to  furnish  any  clew  for  their  detec- 
tion. M.  le  President,  of  course,  felt  himself  much 
aggrieved  at  this,  and  bound  by  the  duties  of  his 
position  to  prove,  if  possible,  that  the  entire  story 
of  accomplices  was  a  fabrication.  Nor  did  he  spare 
any  efforts  to  do  so.  The  obstinacy  of  the  prisoner 
in  clinging  to  the  assertion  was  peculiarly  irritating 
to  him  and  incited  him  to  unusual  exertion.     Fre- 


TROPPMANN.  243 

quently  he  gave  the  prisoner  the  lie  direct  upon 
this  point.  At  one  time  he  exclaimed  :  "  Eh  Men  ! 
I  tell  you  it  Avas  you,  and  you  alone,  who  assassi- 
nated Jean  Kinck  in  order  to  rob  his  family.  It  is 
all  an  utter  fable  about  these  persons  whom  you 
say  that  you  accidentally  happened  upon  in  the 
midst  of  the  villanous  crime  of  highway  robbery, 
and  who  joined  with  you  to  slay  Kinck." 

The  prisoner  stated  that  he  obtained  from  Kinck 
the  money  to  pay  for  certain  articles  which  he  had 
purchased.  M.  le  Prc^sident  broke  in  with  :  "  Yes  ! 
You  spent  your  victim's  money  !  You  displayed  an 
ingenuity  which,  without  extravagance,  I  can  de- 
scribe as  hellish  !  " 


M.  le  President :  "  So  then,  you  assumed  the 
name  of  Jean  Kinck,  whom  you  had  poisoned  and 
robbed  ?  "  Prisoner  :  "  I  killed  and  robbed  him 
no  more  than  the  others.  Had  I  sought  to  do 
what  you  charge  me  with,  I  need  only  have  poisoned 
the  whole  family  and  not  have  attempted  a  thing 
so  impossible,  even  so  stupid  as  that."  M.  le 
President :  "  There  was  on  your  part  a  wonderful 
forecast  and  skill  in  execution,  which  prove  you  to 
be  by  no  means  so  destitute  of  intelligence  as  you 
would  like  to  make  out." 

This  persistency  of  the  prisoner  on  the  point  of 
accomplices  was  fast  driving  the  president  beyond 
the  power  of  self-control.  From  time  to  time  he 
burst  out  with  exclamations  of  disgust  and  disbe- 
lief, delivered  with  an  emphasis  of  gesticulation 


244  TEOPPMANN. 

which  could  not  be  photographed  in  the  reports,  but 
which  is  left  to  be  imagined  :  "  Miraculous  circum- 
stance !  "  he  cried  ;  "  this  extraordinary  accomplice, 
after  having  committed  the  crime  almost  without 
assistance,  leaves  you  to  enjoy  all  the  plunder  ! 
Come,  these  accomplices  display  such  unwonted 
and  marvellous  traits  that  it  is  impossible  for  any 
one  to  believe  in  their  existence." 

Coming  to  the  consideration  of  the  entrapping  by 
Troppmann  of  his  victims,  his  meeting  them  in  Paris, 
and  the  snares  which  he  laid  for  them,  M.  le  Presi- 
dent dwelt  upon  the  drive  to  the  Pantin  field,  nar- 
rated with  horror  the  sang-froid  with  which  the 
murderer  had  chatted  with  his  victims,  and  told 
how,  when  arrived  at  the  spot,  he  had  first  taken 
out  the  mother  and  two  children,  and  had  left  the 
other  three  for  a  few  minutes  in  the  carriage.  "  We 
know  what  the  other  children  did  Avhile  they  waited 
in  the  carriage.  They  showed  their  joy  at  again 
meeting  their  father.  Yet  alas  for  the  poor 
little  creatures !  Long  ago  had  their  father  been 
slain  !  Arrived  at  the  spot,  you  struck  the  mother 
with  a  knife.  She  did  not  utter  a  sound.  You 
dealt  her  thirty-five  or  thirty-six  savage  blows. 
You  attacked  her  like  a  wild  beast  (yous  vous  achar- 
niez  sur  elle).  The  knife  was  the  only  weapon 
used  in  killing  her.  Alfred  also  you  struck  in  the 
same  manner,  in  the  neck,  with  the  knife  only. 
His  body  bore  some  traces  of  his  having  made  re- 
sistance ;  that  is  to  say,  he  was  wounded  in  his 
hands,  as  if  he  had  instinctively  raised  them.  As 
for  Hortense,  you  smashed  in  her  head  with  a  blow 


TROPPMANN.  245 

of  the  pickaxe.  Is  all  this  true  ?  "  Prisoner  :  *'  No, 
it  is  not  true.  It  was  the  accomplices  who  gave 
the  blows.  ...  As  for  this  pickaxe,  I  should 
like  to  see  any  man  who  could  wield  it  so  easily  as 
you  declare  that  I  did."  M.  le  President :  "  Oh, 
the  physicians  have  examined  you  ;  though  you 
may  not  be  a  powerful  man,  yet  there  is  no  doubt 
but  that  you  are  remarkably  quick  and  agile. 
Moreover,  as  a  mechanic,  you  have  gained  an  un- 
deniable correctness  of  eye  and  precision."  Well 
might  the  poor  wretch  despair  when  even  his  skill 
in  his  trade  appeared  thus  to  turn  against  him. 

At  last,  M.  le  President,  having  hunted  his 
quarry  to  and  fro  over  the  whole  ground  of  the 
anticipated  testimony  for  the  prosecution,  let  him 
drop.  The  witnesses  were  introduced.  Cheerfully 
encouraged  by  the  court  to  go  as  far  as  they  could 
against  the  accused,  they  tried  to  acquit  themselves 
satisfactorily.  A  butcher  boy  first  took  the  stand, 
and  told  how  he  had  made  the  discovery  of  the 
place  of  burial  of  the  mother  and  children  by  the 
feeling  and  appearance  of  the  sods.  The  president 
turned  to  Troppmann :  "  Troppmann,  for  one  mo- 
ment be  sincere.  Indulge  in  so  much  as  an  approach 
toward  penitent  feeling  !  though  as  yet  you  have 
by  no  means  done  so.  It  was  you  who  slew  Gus- 
tave  ?  "  Strange  to  say,  this  touching  and  persua- 
sive appeal  failed  to  elicit  from  the  accused  the 
desired  confession.  The  trial  was  left  to  proceed  in 
regular  course. 

Photographs  of  the  corpses  had  been  taken  at  the 
morgue,   shortly  after  their   exhumation.     These 


246  TROPPMANN. 

hideous  pictures  were  now  produced  and  shown  to 
Troppmann.  The  president  bade  him  look  at  them, 
for  they  were  his  victims,  and  he  ought  to  recog- 
nize themi  in  the  pHght  in  which  he  had  placed 
them.  He  contemplated  them  without  visible 
emotion  other  than  was  betrayed  by  a  slight  smile, 
and  answered  that  he  did  recognize  them. 

The  sister  of  the  slaughtered  woman  was  next 
introduced,  clad  in  deep  weeds.  Not  that  she  had 
a  syllable  of  testimony  to  give  concerning  the  mur- 
der, but  because  the  French  mind  required,  for  the 
picturesque  strengthening  of  the  lights  and  shades  of 
the  trial,  a  sketch  of  the  domestic  bliss  in  which  the 
Kinck  family  had  dwelt  together.  M.  le  Pr(isident 
gave  her  the  cue  by  his  question  ;  "  Was  there  not 
a  rare  degree  of  attachment  in  this  household  ?  " 
"  Ah,  yes ! "  sobbed  the  bereaved  sister.  She 
finished  somewhat  feebly  ;  without  the  help  of  the 
president  she  would  have  failed  utterly  to  play  her 
allotted  part.  Her  husband  was  next  placed  upon 
the  stand  for  the  same  purpose,  and,  beneath  his 
more  vigorous  handling,  the  colors  were  somewhat 
deepened.  M.  le  President  opened  the  way  by 
saying,  "  Your  sister-in-law  was  a  profoundly  esti- 
mable woman,  and  an  example  to  mothers  !  "  to 
which  the  brother-in-law  made  an  eloquent  re- 
sponse. A  neighbor  was  called  to  the  same  point. 
M.  le  President :  "  You  were  a  neighbor  of  Kinck. 
Tell  us  something  about  the  family."  Witness  : 
"  Jean  Kinck  was  an  extremely  brave  man  and  the 
best  of  husbands  ;  his  wife,  likewise,  was  courage- 
ous, and  a  very  good  housekeeper."     M.  le  Pr^si- 


TEOPPMANN.  247 

dent:  "They  loved  their  children?"  Witness: 
"They  adored  them,"  M.  le  President:  "And 
the  children  ?  "  Witness  :  "  They  were  models  of 
filial  affection.  I  knew  them  well ;  they  were  at  my 
house  from  morning  to  night."  The  president  did 
not  stop  to  inquire  why  children  so  loving  and  so 
loved  were  wont  to  spend  the  whole  day  at  a  neigh- 
bor's house;  but  hastened  to  ask:  "  Kinck  had  a 
large  property  ?  "  Witness :  "  Yes,  he  had  a  fortune 
earned  by  his  own  toil,"  &c.,  &c.  All  this  matter 
of  course  had  nothing  whatsoever  to  do  with  the 
question  of  whether  or  not  Troppmann  had  mur- 
dered the  Kincks.  But  aesthetically  such  testimony 
was  needed.  The  judicial  drama  would  have  been 
grossly  incomplete  without  it. 

Troppmann  insisted  upon  it  that  he  and  Kinck 
had  concocted  together  a  scheme  for  making  coun- 
terfeit money,  expecting  thereby  to  arrive  quickly 
at  great  wealth.  Beyond  his  reiterated  statement, 
there  was  no  testimony  either  disproving  or  corrob- 
orating the  story.  But  it  awoke  great  indignation 
in  the  mind  of  M.  le  President,  who  once  remarked 
to  the  accused  :  "  Ah,  this  is  your  everlasting  cal- 
umny against  your  victim.  The  jurors  will  not  fail 
to  appreciate  it ;  "  and  again,  to  a  witness  who  re- 
ferred to  it :  "  It  is  an  odious  libel  on  the  part  of 
the  accused."  Troppmann  tried  to  prop  the  unsatis- 
factory credence  which  M'^as  extended  to  him  in  this 
jjarticular,  by  deducing  from  the  remarks  of  a  wit- 
ness that  Kinck  had  assigned  different  and  incon- 
sistent causes  for  undertaking  the  journey  upon 
which  he  was  slain.     M.  le  President  interrupted 


24$  TEOPPMAKN. 

him  :  "  For  ever  this  same  plan  !  After  you  have 
slain  this  ill-starred  man,  you  slander  his  character," 
Troppmann :  "  I  have  no  such  plan."  M.  le  Presi- 
dent: "You  have  brought  to  this  hearing  nothing 
but  a  string  of  calumnious  falsehoods  against  your 
victim.  In  recalling  such  monstrous  crimes,  you 
have  not  a  single  tear,  not  a  tone  of  feehng." 

A  female  witness  stated  that  she  had  sought  to  dis- 
suade Madame  Kinck  from  going  to  Paris  in  search 
of  her  husband,  because  her  daughter  was  ill,  and 
she  herself  was  in  a  bad  condition.  M.  le  Presi- 
dent interrupted  :  "  She  was  in  a  family  way  ;  that 
is  not  a  bad  condition  ! "  whereupon  the  elegant 
audience  of  Parisian  ladies  and  quasi  ladies  burst 
into  loud  laughter  at  his  honor's  little  joke.  There 
were  other  dashes  of  this  species  of  wit  to  enliven 
the  proceedings.  A  witness  testified  that  he  had 
been  with  Troppmann  at  a  ball.  M.  le  President : 
"Were  you  alone  with  him?"  Witness:  "Oh, 
no,  I  had  a  woman  with  me,  —  you  understand  !  I 
am  not  a  married  man."  This  sally  was  hailed  by 
prolonged  laughter,  in  which  Troppmann,  the  young 
man  of  offensively  regular  habits,  bore  a  hearty 
part. 

The  coachman  who  drove  the  family  to  the  Pan- 
tin  field,  the  scene  of  the  massacre,  was  called.  He 
was  asked  what  they  talked  about  on  the  way  out, 
but  said  that  he  could  not  hear.  "  No  matter," 
quoth  the  president,  "  there  is  no  dispute  about 
that.  Troppman,  while  leading  his  wretched  vic- 
tims to  the  slaughter,  had  the  hardihood  to  enter- 
tain  them   with   talk   about   the   beauties  of  the 


TEOPPMANN.  249 

neighborhood.  When  Troppmann  came  back  for 
the  three  children  who  were  left  in  the  carriage, 
what  did  he  say  ?  "  Witness :  "  He  said,  '  come, 
my  children,  get  ont,  we  have  decided  to  wait 
here.'  "  M.  le  President :  "  You  hear,  Troppmann ; 
there  is  no  heart  here,  save  only  your  own,  that 
does  not  shudder  Avith  horror.  You  came  to  get 
these  wretched  little  ones  in  order  to  slay  them, 
and  you  call  them  '  my  children  ! '  It  makes  one's 
blood  run  cold.  Answer  me."  Troppmann,  upon 
whom  the  president's  eloquence  seems  quite  thrown 
away,  coolly  replied,  "  It  is  true." 

A  gendarme  stated  that  Troppmann  had  spoken 
to  him  concerning  Pantin  and  Roubaix.  Tropp- 
mann positively  denied  it,  and  declared  that  it  was 
a  fabrication  of  the  witness.  M.  le  President: 
"  Then  this  witness,  like  all  the  rest  of  them,  does 
not  speak  the  truth  ?  "  Troppmann  :"  No."  M. 
le  President,  to  the  witness,  ironically :  "  You  see, 
witness,  you  also  are  a  liar  !  " 

A  physician  Avas  called  who  had  examined  the 
bodies,  and  who  was  required  to  give  a  description 
of  them.  His  eifort  to  do  so  was  extremely  vivid 
and  shocking.  As  he  passed  from  one  to  another, 
he  became  more  and  more  wrought  up,  and  finally 
he  began  to  sketch  the  whole  scene,  as  it  had  estab- 
lished itself  before  the  eyes  of  his  imagination: 
"  The  little  daughter,  Marie  Hortense,  had  a  great 
gash  from  a  knife,  which  laid  open  her  abdomen 
so  that  her  entrails  gushed  out.  The  knife  was 
broken  by  the  blow.  Her  skull  was  broken  in. 
Her  death  agony  must  have  been  something  abso- 


260  TROPPMANN. 

lutely  terrible  (^foudroyante).  But  even  all  this 
did  not  satiate  the  murderer.  He  glutted  himself 
(il  s'est  acharne')  upou  this  wretched  child,  and 
mangled  her  with  his  pickaxe.  Her  ear  was  torn 
off;  her  eye  was  gouged  out;  her  skull  was  shat- 
tered." Here  the  witness  broke  down  beneath  the 
influence  of  a  horror  which  was  shared  by  all  his 
hearers,  save  only  by  Troppmann,  who  listened 
with  perfect  impassibility.  The  doctor  recovered 
himself  and  went  on,  but  we  shall  spare  the  reader 
the  further  recital.  At  the  close,  the  Court  pro- 
pounded to  him  a  "  delicate  question,"  which, 
however,  it  appears  that  he  had  already  answered 
in  the  preliminary  proceedings.  This  delicate  ques- 
tion, certainly  objectionable  upon  any  other  than 
the  extraordinary  hypothesis  that  this  medical  gentle- 
man was  judicially  known  to  M.  le  President  to  be 
an  expert  in  murder  by  violence,  was  simply  :  "  Do 
you  believe  that  a  single  individual  could  have  com- 
mitted these  six  murders?"  If  the  presiding  func- 
tionary had  felt  a  doubt  about  the  propriety  of  the 
query,  the  doctor  at  least  felt  no  modesty  or  hesi- 
tation in  framing  an  answer,  all-important  as  that 
answer  must  be  to  the  prospects  of  the  accused. 
*'  I  need  not  even  have  recourse  to  suppositions  in 
this  matter.  It  is  enough  that  I  bethink  me  of  the 
nature  of  the  wounds.  The  knife  was  the  only 
weapon  used  for  despatching  the  first  group,  —  a 
babe  two  years  old,  the  mother  struck  suddenly,  a 
child  that  scarcely  defended  itself.  All  this  might 
have  been  accomplished  by  one  man  in  four  or  five 
minutes.      With  the  second  group  no  knife  was 


TROPPMANN.  261 

used,  but  they  were  strangled.  To  strangle  two 
children  is  a  short  job.^  A  terrible  bloAV  of  the 
pickaxe  did  the  work  for  the  third."  M.  le  Pre- 
sident :  "  You  conclude,  then,  that  the  murderer 
was  alone  ?  "  Witness :  "  That  is  my  conclusion, 
and  I  am  positive  in  it."  Defendant:  "I  believe 
it  is  utterly  impossible  for  a  single  man  to  have 
done  all  that ;  that  is  my  opinion,  and  I  am  sure 
there  are  many  here  who  agree  to  it." 

Another  physician  was  called.  He  was  of  opin- 
ion that  "  the  very  nature  of  the  wounds  proved 
that  they  had  all  been  committed  by  the  same 
hand."  This  species  of  testimony  seems  to  us  to 
leave  the  experts  in  handwriting  very  far  in  the 
rear.  Here  is  a  doctor  who  can  recognize  a  pe- 
culiar style  in  a  blow,  that  tells  him  by  whose  hand 
it  was  dealt ;  and  not  only  this,  but  where  three 
persons  have  been  stabbed,  two  strangled,  and  one 
struck  by  a  pickaxe,  this  same  skilled  observer  can 
still  mysteriously  see  that  all  the  deeds  were  the 
work  of  a  single  hand.  "  In  the  first  group,  the 
mother  was  struck  from  behind ;  the  babe  of  two 
years  old  was  unable  to  resist ;  only  the  little  boy 
*even  attempted  a  defence.  All  three  were  slain 
with  the  knife.  The  knife  breaks.  The  murderer 
strangles  the  rest.  There  were  two  distinct  pro- 
cesses designed  by  the  accused  to  accord  with  the 
age  and  power  of  resistance  of  his  several  victims. 
It  is  my  absolute  conviction  that  there  was  but  one 
murderer.  I  will  further  say,  that  according  to  my 
notion,  Troppmann  was  well  able  to  have  committed, 
by  himself,  all  six  murders."     It  is  open  to  doubt 


252  TROPPMANN. 

whether  even  the  rigid  doctrines  of  the  English 
criminal  law  could  have  bridled  the  picturesque 
fancy  and  lively  tongues  of  these  emotional  French- 
men. 

But  there  was  more  testimony  of  the  same  sort 
still  to  come.  One  of  the  physicians  was  recalled 
and  asked  if  he  had  examined  the  accused.  Witness : 
"  Yes  ;  he  is  weak  in  appearance,  but  he  has  a  very 
strong  thumb.  Besides,  in  his  profession  as  a  me- 
chanic he  has  acquired  great  dexterity  and  preci- 
sion of  movement.  I  am  sure  that  he  could  have 
strangled  the  two  Kinck  children,  one  with  each 
hand,  as  easily  as  a  Hercules."  Troppmann :  "  The 
two !  But  the  third !  do  you  suppose  he  would 
have  been  such  a  fool  as  to  wait  for  me  ?  "  Wit- 
ness :  "  The  third  might  have  been  struck  first  of 
all  with  the  pickaxe,  and  it  was  as  the  other  two 
turned  to  flee  that  they  were  caught  and  strangled." 
A  "  profound  sensation  "  was  remarked  among  the 
audience  as  this  testimony  closed. 

The  last  day  of  the  trial  came,  and  the  elegant 
and  distinguished  personages  in  the  audience  had 
increased  to  such  a  number  that  the  newspaper  re- 
porters abandoned  in  despair  the  attempt  to  enumer- 
ate them.  A  small  pamphlet  entitled  "  Etude 
medico-leg  ale  sur  Troppmann,''''  was  hawked  among 
the  benches.  Some  read  it  and  found  that  it  was 
an  argument  to  prove  that  he  was  the  victim  of 
monomania  at  the  time  of  the  commission  of  the 
murder.  Others  amused  themselves  by  looking  at 
the  defendant,  and  asking  him,  with  true  French 
politeness,  how  he  had  slept  the  night  before.     He 


TROPPMANN.  268 

answered  that  he  had  "  slept  ver}'^  well,  —  the  sleep 
of  innocence,  you  know." 

The  proceedings  of  this  day  are  not  of  especial 
interest  for  our  purposes.  A  little  unimportant 
testimony  was  introduced,  and  then  the  counsel 
delivered  their  arguments.  M,  Lachaud  appeared 
for  Troppmann.  He  began  in  a  manner  which  may 
appear  somewhat  singular.  He  feared  that  many 
persons  might  conceive  that  he  had  done  something 
odious  and  disreputable  in  undertaking  to  act  as 
counsel  for  the  defendant.  He  wished  to  explain 
clearly  to  such  cavillers  that  he  had  done  only  his 
duty  as  an  advocate,  only  what  the  technical  honor 
of  his  office  as  a  counsellor  bound  him  to  do.  The 
doctrine  of  professional  ethics  was  sound  enough, 
but  such  deprecation  of  popular  blame  for  appear- 
ing for  one's  client  is  hardly  the  manner  in  which 
counsel  in  our  country  are  apt  to  enter  upon  an 
earnest  defence.  But  the  learned  gentleman 
quickly  inade  up  for  a  bad  beginning,  by  going 
inexcusably  far  in  a  less  correct  exposition  of  his 
duties,  and  of  his  fulfilment  of  them.  "  I  conjure 
you,  then,  to  shut  the  doors  of  your  consciences 
against  prejudice.  Have  the  courage  and  the 
patience  to  hear  me.  Listen  to  me  and  I  wiU 
seek  to  lay  bare  the  truth  before  you ;  yes,  the 
TRUTH,  such  as  I  understand  it  to  be,  not  as  the 
accused  wishes  or  imagines  it.  You  do  not  con- 
ceive that  I  am  here  to  recall  and  to  make  good  all 
that  he  has  said,  for  that  would  be  to  degrade  my 
profession  to  the  level  of  the  lowest  trades.  It  is 
true  that  I  am  here  to  defend  this  man,  but  before 


254  TEOPPMANN. 

becoming  his  counsel  I  must  also  be  his  judge.  The 
conduct  of  his  defence  belongs,  and  belongs  wholly 
and  exclusively  to  me.  I  shall  present  it  to  you 
like  a  man  of  honor,  who  speaks  only  according  to 
his  conscience  and  his  belief." 

It  was,  to  a  certain  extent,  excusable  for  M.  La- 
chaud  to  explain  that  he  did  not  propose  to  uphold 
the  veracity  of  his  client  in  all  his  statements,  for 
it  was  neither  possible  nor  desirable  that  inconsist- 
ent assertions,  the  latest  of  which,  by  the  avowal 
of  that  client  himself,  bad  been  put  forth  for  the 
express  purpose  of  contradicting  their  predecessors. 
But  what  are  we  to  think  of  this  declaration,  that 
the  defendant's  counsel  has  no  aim  but  to  discover 
the  real  truth  of  the  matter  in  litigation ;  that  he 
does  not  intend  to  present  his  client's  case,  but  im- 
partially to  extract  the  kernel  of  veracity.  No 
lawyer  intends  to  lie  in  his  argument ;  but  he  in- 
tends to  suggest  every  thing  which  is  favorable  to 
his  client  and  unfavorable  to  the  adverse  party,  and 
to  support  all  such  suggestions  by  every  honest  con- 
sideration, and  every  item  of  evidence  which  can 
be  brought  to  this  service.  Certainly  he  is  no  judi- 
cial seeker  after  abstract  truth.  He  does  not  ex- 
amine his  client's  cause  judicially  and  satisfy  himself 
of  its  justice  before  he  enters  into  it  as  counsel.  To 
throw  into  an  argument  the  weight  of  personal  char- 
acter by  an  expression  of  private  opinion,  is  with  us 
considered,  and  rightly  considered,  very  unbecom- 
ing. Certainly  the  prevalence  of  such  a  habit  would 
prove  terribly  demoralizing  among  members  of  the 
bar.     But  how  far  does  this  fall  short  of  the  delib- 


TROPPMANN.  255 

erate  statement  of  the  French  advocate,  that  he  is 
his  client's  judge,  and  that  he  is  resolved  to  make 
his  way  to  the  absolute  truth  of  the  matter,  and  to 
drag  it  forth  for  the  enlightenment  of  the  jury. 

The  argument  which  followed  this  objectionable 
exordium,  if  we  may  judge  from  the  newspaper  re- 
ports, was  as  weak  as  might  have  been  expected 
from  the  difficulties  of  the  case,  though  the  report- 
ers spoke  of  it  in  terms  of  polite  praise.  If  it  was 
not  the  promised  elucidation  of  unalloyed  truth,  it 
was  almost  equall}'-  useless  to  the  prisoner.  The 
judge  asked  Troppmann  if  he  had  any  thing  to  say 
to  the  jurors  before  they  went  out.  He  answered 
that  he  had  not.  They  retired  to  deliberate.  He 
proposed  to  his  guards  to  play  a  ginne  of  cards  to 
while  away  the  time  till  their  return.  They  were 
out  but  a  short  time,  however,  not  leaving  much 
leisure  for  this  recreation  before  bringing  back  a 
verdict  of  guilty,  without  extenuating  circum- 
stances. Again  the  Court  offered  Troppmann 
leave  to  speak  in  his  own  behalf.  Again  he  smil- 
ingly declined  to  say  any  thing.  The  Court  retired, 
deliberated  for  five  minutes,  returned,  and  pro- 
nounced sentence  of  death. 

It  ought,  perhaps,  to  be  taken  into  consideration 
in  the  criticism  of  this  Troppmann  trial,  that  the 
crime  was  so  utterly  heinous  as  to  render  it  impos- 
sible even  for  stoical  men  to  contemplate  it  with 
entire  calmness.  The  merciful  might  make  due 
alloAvance  for  the  false  confessions  which  might 
conceivably  have  been  achieved  by  the  peine  forte 
et  dure  of  the  preliminary  examinations.     But  after 


256  PRINCE  PIERRE  BONAPARTE. 

mercy  had  been  exhausted  in  imagining  doubts, 
which  none  could  seriously  entertain,  it  remained 
the  conviction  of  all  men  that  Troppmann  was  the 
guilty  creature.  Something  of  irrepressible  indig- 
nation must  perhaps  be  pardoned  in  any  ordinary  hu- 
man being  brought  into  loathsome  contact  with  such 
a  wretch,  the  witness  of  his  unremorseful  conduct, 
and  of  his  false  devices  for  escape.  But  such  con- 
siderations can  only  feebly  extenuate,  and  by  no 
means  excuse,  the  conduct  of  the  functionary  who 
should  have  remembered  that  he  filled  a  judicial 
office,  and  should  have  respected  his  high  duties, 
even  at  the  cost  of  a  severe  self-control.  An  Eng- 
lish or  American  judge  could  and  would  have  done 
so;  but  the  French  president  probably  never  so 
much  as  recognized  the  propriety  of  the  effort. 


n. 

PRINCE    PIERRE   BONAPARTE. 

The  superficial  aspect  of  the  trial  of  Prince 
Pierre  Bonaparte  was  vastly  less  offensive.  In  his 
crime  there  was  nothing  to  create  an  equally  deep 
horror.  In  his  rank  and  connections  there  was 
much  to  propitiate  at  least  decent  treatment.  Upon 
the  whole,  he  received  decent  treatment.  The 
acte  d^ accusation  was  tempered  like  the  wind  to  the 
shorn  lamb.  Troppmann's  prior  life  exhibited  noth- 
ing worse  than  a  taste  for  yellow-covered  literature. 


PEmCE   PIERRE   BONAPARTE.  257 

for  chemistry,  and  for  riches,  yet  in  the  acte  all  these 
traits  were  so  grouped  and  colored  as  to  resemble 
evidence  of  guilt.  Prince  Pierre's  prior  career  had 
been  "  orageuse "  in  the  extreme.  He  had  even 
slain  many  men  before  Victor  Noir  dropped  beneath 
his  pistol.  There  was  in  his  stormy  history  ample 
material  for  an  acte  which  should  read  like  the 
memoirs  of  a  corsair.  But  no  such  document  was 
concocted.  That  which  was  really  read  in.court  was 
quite  simple,  not  quite  so  naked  and  technical  a 
recital  of  charges  as  our  indictment,  but  a  narrative 
not  very  rambling,  nor  gravely  impertinent.  The 
gensdarmes  who  had  charge  of  Troppraann  were 
directed  to  call  him  Monsieur^  a  courtesy  not  always 
extended  to  defendants  under  criminal  charges. 
But  this  sole  mark  of  respect  which  Avas  paid  to  him 
fell  far  short  of  the  delicate  consideration  which 
was  continually  manifested  for  the  Prince.  Wit- 
nesses and  counsel  were  frequently  reminded  that 
the  accused  was  choleric,  and  that  he  was  not  to 
be  provoked  by  censorious  language,  or  by  injurious 
reflections.  Troppmann  was  continually  informed 
by  the  judge  that  he  was  the  sole  murderer  of 
eight  persons,  and  was  told  with  great  precision 
how  and  why  he  murdered  each ;  but  when  the 
prosecuting  counsel  in  the  latter  trial  so  far  forgot 
himself  as  to  speak  to  or  of  the  Prince  as  guilty  of 
the  murder  of  Noir,  before  the  jury  had  determined 
whether  the  death  which  he  had  avowedly  inflicted 
upon  the  deceased  was  murder  or  manslaughter,  the 
Court  interfered,  and  rebuked  the  premature  use 
of  such  language.     Moreover,  the  tribunal  before 

17 


258  PRrN-CE  PIERRE  BONAPARTE. 

■which  the  Prince  was  tried  at  Tours,  was  one  of 
extraordinary  dignity.  The  jurors  were  selected 
by  lot  from  among  old  men  holding  respectable 
official  positions.  It  was  called  "  La  haute  Cour  de 
Justice,''^  and,  at  least  so  far  as  its  composition  was 
concerned,  it  deserved  this  venerable  title. 

But  the  best  efforts  that  could  be  made  to  pre- 
serve an  appearance  of  external  propriety,  so  ex- 
ceptional .and  so  contrary  to  the  traditional  habits 
of  French  Courts,  met  with  very  imperfect  success. 
The  judge,  or  president,  practised  a  praiseworthy 
self-restraint,  and  made  attempts,  which  however 
were  crowned  with  but  limited  success,  to  restrain 
the  violence  of  the  advocates  and  of  the  witnesses. 
For  advocates,  witnesses,  and  defendant  Avere  alike 
furious,  and  occasionally  broke  away  from  all  con- 
trol to  indulge  in  wild  and  extravagant  bursts  of 
hostility  and  rage.  Apart  from  the  more  superficial 
attributes,  there  were,  of  course,  the  j^eculiar  vm- 
derlying  principles  which  control  the  general  con- 
duct of  criminal  trials  in  France,  and  which  were 
necessarily  unalterable.  The  judge  interrogated 
and  examined  Prince  Pierre,  not  so  roughly  as  he 
might  have  done,  but  still  with  reasonable  thorough- 
ness. He  addressed  him  continually  with  ques- 
tions and  remarks  while  the  witnesses  were  giving 
their  testimony.  The  Prince  threw  in  his  comments 
when  and  where  he  chose.  Often  there  were  five- 
handed  contests,  in  which  president,  defendant, 
witness,  and  counsel  for  prosecution  and  defence 
took  active  and  vigorous  parts,  and  bandied  con- 
tradiction, abuse,  and   sometimes   aven  defiance, 


PEmCE  PIERRE  BONAPARTE.  259 

with  unrestrained  and  graceful  freedom.  The 
prisoner's  past  life  was,  of  course,  considered 
proper  material  for  investigation,  and  for  free  use 
in  evidence  and  argument.  M.  le  President  re- 
frained from  meddling  much  with  it.  "  Mention 
has  been  made,"  he  said,  "  of  several  occurrences 
in  your  previous  career  ;  but  I  do  not  wish  to  pay 
any  particular  attention  to  these.  If  they  are 
mentioned  hereafter  in  the  course  of  the  trial  you 
will  then  explain  them.  Still  I  must  recall  one 
affair.  In  1848  you  were  fined  200  francs  for  an 
act  of  violence  committed  upon  one  of  your  col- 
leagues in  the  national  representation."  The 
Prince :  "  Yes,  but  it  was  because  I  had  been  out- 
rageously insulted,  as  well  as  my  comrade,  the 
keeper  of  the  seals,  M.  Odilon  Barrot."  The 
president  then  read  the  judgment  which  had  beeu 
rendered  in  this  matter.  The  Prince :  "  I  declared 
at  the  tribune  of  the  Chamber  that  this  act  was 
not  intended  by  me  to  show  any  want  of  respect 
towards  my  colleagues.  This  explanation  was  satis- 
factory to  the  Chamber  and  to  the  president." 

M.  Ulric  de  Fonvielle,  the  only  eye-witness  of 
the  tragedy  at  Auteuil,  was  called.  It  will  be 
remembered  that  he  had  gone  to  the  Prince's  house 
with  Noir,  and  that  their  errand  was  to  deliver  a 
challenge.  He  expressed  a  desire  to  go  far  back  in 
his  history,  and  to  tell  a  long  story  in  order  to 
introduce  properly  the  tale  of  the  fatal  day.  The 
Court  refused  to  allow  this,  and  obliged  him  to 
come  at  once  to  the  narration  of  the  event  itself. 
M.  le  President,  apparently  taking  judicial  notice 


260  PKINCB  PIERKE  BONAPARTE. 

of  the  code  of  the  duel,  asked  how  the  two  came 
to  go  directly  to  the  house  with  the  challenge 
instead  of  seeking  to  be  put  in  communication  with 
the  seconds  of  the  challenged  man,  contrary  to  the 
established  usage  of  the  duel.  "  Mon  Dieu !  M. 
le  President,"  exclaimed  De  Fonvielle,  "  Many  a 
time  have  I  been  second  in  such  affairs  of  honor, 
and  I  beg  to  say  that  they  are  always  conducted  in 
this  manner !  "  "  Once  more,"  replied  the  uncon- 
vinced president,  "  I  must  say  to  you  that  you 
ought  never  to  have  gone  in  person  to  Auteuil." 
De  Fonvielle :  "  I  had  no  reason  for  not  going  there. 
I  could  not  anticipate  such  a  scene  of  violence  on 
the  part  of  the  Prince,  although  I  did  know  very 
well  that  we  were  going  to  encounter  an  assassin 
at  Auteuil ! "  The  Prince  angrily  interrupted : 
"  Assassin  !  Ah,  you  are  all  of  a  piece,  you  fellows ! 
You  forget  all  that  has  happened  from  the  affair  of 
the  Rue  Saint  Nicaise  to  that  of  the  Orsini  bombs. 
Assassin  !  it  is  you  yourself  that  a.ve  an  assassin !  " 
M.  le  President,  taking  this  little  passage  quite 
calmly :  "  Witness,  you  ought  to  have  taken  a 
more  temperate  young  man  to  Auteuil  on  such  an 
errand."  De  Fonvielle  :  "  Though  he  was  young, 
he  was  very  governable.  He  was  going  to  be  mar- 
ried in  a  few  days."  M.  le  President :  "  You  had 
a  revolver  with  you ;  what  was  that  for  ?  "  De 
Fonvielle :  "  Oh  !  Mon  Dieu  !  It  is  my  habit.  Be- 
ing a  journalist  I  have  to  be  out  late  at  night.  And 
I  have  known  of  gentlemen  being  knocked  over 
the  head  and  beaten  by  the  emissaries  of  princes 
and  dukes."     M.  le  President :  "  Still  I  must  say 


PRINCE  PIERRE   BONAPARTE.  261 

that  it  was  a  very  strange  thing  for  you  to  go  aimed 
to  the  Prince's  house,  when  you  were  going  as  a 
second."  It  is  amusing  to  see  the  Court  taking 
judicial  cognizance  of  the  duellists'  code,  laying 
down  the  sound  rules,  and  getting  into  a  warm 
dispute  with  one  who  seems  to  have  been  a  pro- 
fessor emeritus  in  such  learning. 

Another  journalist,  who  was  at  the  Prince's 
house  just  after  the  affraj',  acknowledged  that  he 
also  had  a  pistol.  But  he  explained  to  the  Court 
that  it  was  only  a  defensive,  not  an  offensive  wea- 
pon ;  that  it  had  been  given  him  by  his  wife,  and, 
as  the  Court  must  know,  wives  never  give  their 
husbands  dangerous  weapons.  The  Prince,  ex- 
citedly :  "  Defensive  arms  are  only  cuirasses  and 
helmets.  I  hope  the  high-jurors  will  be  well  able  to 
appreciate  what  degree  of  belief  is  due  to  a  com- 
rade of  De  Fonvielle  and  Rochefort,  those  men 
who  in  spite  of  my  imprisonment  and  consequent 
helplessness  do  not  refrain  from  insulting  me  in 
*La  Marseillaise,'  and  have  printed  a  gasconade 
about  killing  me  after  the  trial  is  over." 

After  M.  Fonvielle  had  given  his  testimony,  divers 
witnesses  were  placed  upon  the  stand  in  order  to 
impeach  his  accuracy.  He  had  sworn  that  the 
Prince  had  struck  the  only  blow  that  was  either 
struck  or  threatened.  But  some  of  these  impeach- 
ing witnesses  declared  that  when,  fresh  from  the 
adventure,  De  Fonvielle  had  narrated  the  occur- 
rence, he  had  either  actually  said  that  Noir  had 
struck  the  Prince  a  good  round  blow,  or  had  made 
gestures  significant  of  such  an  occurrence.     The 


262  PEmCE  PIERRE  BONAPARTE. 

president  turned  to  him  to  inquire  what  he  had  to 
say  to  all  this  :  "  M-.  de  Fonvielle,  you  have  heard 
the  witnesses.  They  give  formal  testimony."  De 
Fonvielle :  "  So  do  I.  I  give  formal  testimony." 
M.  le  President :  "  They  have  seen  a  gesture  made 
by  you  in  giving  your  account  of  the  affair."  De 
Fonvielle  :  "I  deny  it  altogether.  My  narration  is 
formally  made.  I  am  the  only  person  who  saw  the 
occurrence.  I  have  told  it  just  as  it  was  and  I 
stick  to  my  story." 

M.  Grousset  was  next  called  and  asked  whether 
fie  was  related  to  the  Prince.  He  answered :  Lse- 
titia  (the  Prince's  mother)  had  so  many  lovers  that 
I  cannot  say  but  that  I  may  be  related  to  him." 
The  Procureur-G(in(iral  objected  to  such  language. 
But  apparently  the  Court  did  not  think  it  worth 
while  to  administer  any  rebuke,  and  Grousset  went 
on  with  his  testimony. 

The  famous  journalist  Rochefort  was  next  intro- 
duced. He  testified  that  he  also  had  a  duel  with 
the  Prince  in  process  of  preparation,  and  that  he 
had  expected  to  have  fought  him  on  the  day  fol- 
lowing that  upon  which  this  untoward  murder 
took  place.  "  I  had  mentioned  my  expectation  to 
my  friend  Arago,  who  thereupon  said  to  me  :  '  Take 
care !  the  Prince  has  an  abominably  bad  reputa- 
tion,' —  I  only  repeat  what  was  said  to  me,  — '  they 
do  say  that  he  is  a  terribly  low  scoundrel.'  "  M. 
le  President :  "  Really  such  language  cannot  be 
tolerated.  The  defendant  is  under  the  protection 
of  justice  and  must  not  be  iijsulted."  Rochefort: 
*'  I  can  only  say  that  the  insult  is  none  of  my  own 
concoction.     I  only  repeat  what  was  said  to  me." 


PEINCE  PIERRE   BONAPARTE.  263 

The  brother-in-law  of  Victor  Noir  said  that 
Victor  had  on  a  pair  of  tight-fitting  kid  gloves 
which  were  unbroken  after  his  death,  and  was 
sure  that  had  Victor  struck  the  Prince  the  gloves 
would  have  been  split.  Upon  the  basis  of  this 
circumstance  the  witness  formed  and  frankly 
stated  his  conclusion,  that  "  the  Prince  had  lied." 
By  this  time  the  president  seems  to  have  given 
over  his  vain  and  fatiguing  efforts  to  keep  the  wit- 
nesses for  the  prosecution  in  order,  and  the  remark 
passed  unrebuked. 

M.  Siebecher  stated  that  De  Fonvielle  wore 
trousers  which  were  cut  "  according  to  the  American 
pattern^  that  is  to  say,  were  fitted  with  a  pocket 
specially  shaped  to-'  carry  a  revolver." 

Two  witnesses  fell  into  a  hot  dispute  about  a 
remark  attributed  to  De  Fonvielle,  to  the  effect 
that  the  Prince  had  been  struck  by  Noir.  Le- 
chantre,  a  butcher,  swore  that  he  had  stood  close 
by  and  had  heard  the  words.  Flautsch,  a  witness 
on  the  other  side,  swore  that  he  also  had  been  by 
and  tliat  the  words  had  not  been  used.  Lechantre 
stood  up  manfully  for  the  truth  of  his  assertion. 
Flautsch  answered  back  that  the  words  could  not 
have  been  spoken  without  his  hearing  them.  Le- 
chantre retorted  that  if  that  was  the  case  then 
obviously  Flautsch  was  not  on  the  spot.  Lechantre 
appears  to  have  had  the  stoutest  tongue  and  to 
have  come  off  best.  Perhaps  a  Frenchman  might 
fairly  maintain  that  though  such  a  controversy 
may  be  grossly  undignified,  yet  it  may  enable  the 
yiiy  to  weigh  the  respective  claims  to  veracity  of 


264  PKINCE  PIERRE   BONAPARTE. 

the  disputants  morff  correctly  than  our  system 
does. 

The  counsel  for  the  prosecution  now  offered 
some  singular  testimony.  A  Garibaldian  was 
called,  and  M.  Laurier,  the  advocate,  stated  that 
he  had  summoned  this  witness  in  order  to  answer 
an  impeachment  of  character  which,  it  was  true, 
had  not  yet  been  made,  but  which  must  be  antici- 
pated as  sure  to  come.  The  testimony  thus  intro- 
duced concerned  the  moral  character  of  the  witness, 
De  Fonvielle,  while  in  the  Garibaldian  militia. 
An  English  or  American  lawyer  will  smile  with 
mingled  incredulity  and  contempt  when  he  hears 
that  it  was  admitted  without  objection,  and  Ker- 
gomard,  the  witness,  went  on  uninterrupted  to 
say  that  De  Fonvielle  had  been  a  very  exemplary 
man ;  that  since  this  trouble  had  arisen  a  story 
had  got  abroad  of  his  having  been  engaged  in  a 
scandalous  affair ;  but  that  a  scrupuk)us  investiga- 
tion into  his  conduct  had  utterly  disproved  the 
libel ;  that  the  real  sinner  had  been  quite  another 
person,  known  to  the  witness,  but  whom  he  did 
not  wish  at  present  to  name ;  though  he  might  be 
vsdlling  to  do  so  if  the  charge  should  be  pushed 
against  De  Fonvielle :  that  further,  the  real  of- 
fender was  well  known  throughout  the  regiment, 
for  he  had  been  placed  under  arrest  and  expelled 
from  the  army. 

This  vein  of  promiscuous  anecdotage  or  scandal- 
mongering  was  found  too  agreeable  to  be  checked. 
The  court  and  the  jury  alike  enjoyed  and  encour- 
aged it.     The  next  tale  was  in  the  Prince's  favor, 


PEINCE  PIEKRE   BONAPARTE.  265 

and  was  told  by  a  Viscount.  The  narrator  had 
been  challenged  by  the  Prince ;  they  had  actually 
met  for  the  purpose  of  fighting.  But  the  Prince 
had  in  the  interval  been  convinced  of  his  error. 
Wherefore  he  at  once  frankly  walked  up  to  his 
antagonist,  held  out  his  hand,  made  his  reconcili- 
ation, and  thereafter  turned  all  his  energy  to  the 
punishment  of  the  false  tale-bearers.  The  witness 
pointed  the  moral  of  his  story  with  the  remark  that 
this  incident  might  serve  to  give  the  jurors  some 
notion  of  the  Prince's  loyal  and  generous  nature. 

Another  witness  told  how  cool  and  brave  the 
Prince  was  in  battle  and  danger,  and  how  calmly 
he  had  seen  him  turn  in  the  midst  of  foes  to  single 
out  and  shoot  an  assailant  who  had  used  insulting 
language  to  him.  In  testifying  to  his  military 
prowess  one  witness  had  used  the  phrase  that  he 
had  "an  eagle-glance,  —  a  natural  eagle-glance." 
Apparently  there  must  have  been  some  mock- 
heroic  air  on  the  part  of  the  witness,  for  the  words, 
though  foolish,  would  not  otherAvise  have  excited 
so  much  merriment.  M.  Laurier  jeered  at  them 
and  made  the  speaker  appear  in  a  ridiculous  light. 
The  Prince  cried  out  warmly,  "  Will  M.  le  Presi- 
dent allow  me  to  say  that  this  brave  officer  has 
been  shot  through  the  chest  at  my  side,  and  that 
if  his  rhetoric  is  not  so  fine  as  M.  Laurier's,  he 
has  vastly  more  courage  than  belongs  to  M.  Lau- 
rier's faction  !  "  M.  Laurier :  "  The  Court  has 
bidden  me,  though  needlessly,  to  keep  myself 
cool.  On  our  side  it  will  be  admitted  that  we 
have  done  so  perfectly,  throughout  the  trial.     But 


266  PBINCE  PIERRE  BONAPARTE. 

T  am  subjected  to  an  unmeasured  assault  from  the 
accused."  The  Prince  :  "  You  sneered  in  repeat- 
ing the  testimony  of  a  brave  officer."  De  Fon- 
vielle,  springing  up  from  a  distant  seat  among  the 
audience  and  extremely  excited :  "  You  have  sim- 
ply assassinated  Victor  Noir."  It  was  afterwards 
asserted  by  many,  upon  oath,  that  he  added  the 
dangerous  words,  "  a  mort !  a  mort !  kill  him  1 
kill  him ! "  A  great  uproar  was  raised  at  once. 
De  Fonvielle,  still  more  excited,  continued  to 
cry  out,  "  You  have  assassinated  him !  —  like  a 
coward  !  "  The  tumult  increased.  The  audience 
sprang  upon  the  benches.  The  women  gave  way 
to  terror.  It  seemed  that  there  woidd  be  a  hand 
to  hand  fight  bet\yeen  the  opposing  partisans.  M. 
de  Fonvielle  was  almost  torn  in  pieces  by  the  genB- 
darmes,  some  of  whom  tried  to  thrust  him  into  a 
seat,  and  others  to  drag  him  from  the  hall.  The 
defendant  was  taken  out.  It  was  only  by  degrees, 
and  after  the  gensdarmes  had  removed  De  Fon- 
vielle, that  order  was  restored  and  the  proceedings 
were  continued.  An  episode  in  the  trial  the  next 
morning  was  the  hearing  upon  this  conduct  of  De 
Fonvielle.  He  was  sentenced  to  ten  days'  impris- 
onment. 

From  this  interlude  the  Court  returned  to  the 
conduct  of  the  trial,  that  is  to  say,  to  a  farrago  of 
all  sorts  of  extraneous  matters.  The  president 
read  the  proceedings  relative  to  a  caning  inflicted 
once  upon  a  time  by  the  witness  Rocliefort  upon  a 
printer,  for  which  the  offender  had  been  punished 
by  law.     He  also  stated  that  Victor  Noir  was  with 


PRINCE   PIERRE  BONAPARTE.  267 

Rochefort  when  the  chastisement  was  inflicted. 
Next  he  read  the  proceedings  concerning  an  insult 
given  and  a  blow  threatened  by  Noiv  to  a  soldier. 
Laurier:  "  But  no  prosecution  grew  out  of  this." 
M.  le  President :  "  The  truth  is  explained  in  a 
letter  from  the  Procureur-Imperial  of  Bordeaux. 
The  magistrate  of  the  town  declined  to  follow  up 
the  complaint,  because  he  had  good  proof  that 
Victor  Noir  was  at  the  time  very  drunk  and  did 
not  know  what  he  was  about.  But  the  magistrate 
took  Noir  into  his  private  room  and  gave  him  a 
severe  lecture." 

The  evidence  was  at  last  declared  to  be  all  in, 
though  the  story-telling  might  have  been  continued 
till  the  Arabian  Nights  had  been  rivalled.  The 
counsel  for  the  prosecution  then  began  his  speech. 
He  had  not  made  much  progress  in  it  before  he 
touched  upon  the  past  life  of  the  Prince.  He 
began  to  tell  stories  of  previous  affrays  and  mur- 
ders done  by  this  same  violent  hand.  He  told 
of  a  violent  blow  dealt  to  an  aged  man  in  the 
Assemble  ;  of  another  assault ;  of  a  condemnation 
to  death  pronounced  against  the  Prince  for  having 
slain  an  officer  of  the  Pope's  gensdarmes  and 
wounded  several  of  the  soldiery,  in  an  affair  which 
appeared  to  have  grown  out  of  still  another  murder 
previously  committed  by  the  Prince  ;  of  the  expul- 
sion of  the  Prince  by  the  British  government  from 
the  Ionian  Isles.  "So,"  he  said,  "you  see  that 
when  Pierre  Bonaparte  was  Victor  Noir's  age  he 
had  already  three  murders  upon  his  conscience. 
Yet,  Prince  though  he  always  remembers  himself 


268  PEINCE   PIERRE   BONAPAETE. 

to  be,  many  who  have  written  of  his  life  have 
called  him  an  adventurer ! "  The  Prince  broke 
in,  "  You  see,  M.  le  President,  there  is  a  con- 
spiracy to  drive  me  beyond  the  bounds  of  self-con- 
trol !  "  But  the  President  only  reminded  him  that 
the  turn  of  his  own  counsel  was  coming,  and 
that  he  ought  to  disappoint  the  schemes  of  his 
adversaries  by  maintaining  the  self-restraint  which 
they  sought  to  disturb. 

So  the  counsel  continued  to  say  what  they 
pleased.  M.  Laurier  drew  a  picture  of  Noir  as  the 
most  amiable  of  men,  "  as  gentle,  faithful,  and 
affectionate  as  a  Newfoundland  dog,"  —  such  was 
his  unique  simile.  "  But  on  the  other  side,"  he 
said,  "  we  have  Pierre  Bonaparte ;  wherever  he 
has  gone  you  find  his  path  marked  in  tracks  of 
blood.  He  has  been  a  murderer  in  America,  at 
New  York  ;  in  Albania.  In  Africa  he  has  broken 
the  rules  of  military  discipline.  In  Paris  he  has 
assailed  an  old  man."  All  this  passed  unchal- 
lenged. It  was  only  when  once  more,  toward  the 
close  of  his  speech,  the  advocate  again  spoke  of 
the  defendant  as  the  murderer  of  Noir,  that  the 
president  interrupted  him  and  bid  him  not  use 
such  language  before  it  had  been  authorized  by  the 
verdict  of  the  jury. 

The  accused  said  only  a  few  words  in  his  own 
favor  at  the  close  of  the  arguments  of  counsel. 
The  jury  retired  and  brought  in  a  verdict  of  ac- 
quittal. It  was  understood  that  it  was  by  a  ma- 
jority of  one  onl}' ;  for  a  majority  was  sufficient ; 
unanimity  was  not  required.     We  have  no  com- 


PBINCE   PIERRE  BONAPARTE.  269 

ments  to  make  upon  the  political  aspects  of  the 
trial. 

These  descriptions  of  two  famous  trials  are  in- 
tended, as  the  reader  must  have  seen,  not  so  much 
to  present  an  abstract  of  evidence  from  which  the 
guilt  or  innocence  of  the  accused  can  be  deter- 
mined, as  to  give  a  tolerably  correct  idea  of  the 
temper  and  of  some  of  the  rules  prevailing  in 
French  criminal  practice.  But  bad  as  the  trial 
itself  seems  to  those  accustomed  to  the  English 
practice,  the  worst  part  of  the  system  is  found  at 
an  earlier  stage.  So  soon  as  the  accused  is  arrested 
he  is  shut  up  in  a  solitary  cell ;  his  sole  visitors 
are  his  gaoler  and  the  juge  construction.  This 
latter  functionary  is  free  to  visit  him  at  any  time, 
by  day  or  night,  and  to  cross-interrogate,  torment, 
and  harass  him  without  measure,  for  the  purpose 
of  extorting  confession  in  full,  or  such  admissions 
and  statements  as  may  aid  in  securing  conviction. 
At  the  same  time  the  witnesses  are  separately 
examined  and  their  testimony  is  not  communicated 
to  the  accused,  so  that  he  can  have  no  light  from 
this  quarter  to  aid  him  in  framing  his  answers. 
The  moral  effect  of  this  process,  when  brought  to 
bear  by  an  experienced  and  heartless  official,  upon 
a  terrified  or  dull-witted  prisoner,  is  easily  to  be 
imagined.  Utterly  false  results  must  be,  and  are 
known  often  to  have  been,  obtained.  The  trial 
itself,  ludicrous,  uncouth,  and  often  unjust,  as  it 
seems  to  us,  is  yet  by  no  means  grossly  unfair,  at 
least  provided  the  accused  be  reasonably  clever. 
The  president  is  too  often  nob  impartial,  still  less 


270  PRINCE   PIERRE  BONAPARTE. 

judicial,  in  conducting  it.  Neither  is  the  counsel 
for  the  defence  allowed  to  cross-examine  the  wit- 
nesses. He  can  only  state  to  the  president  what 
inquiries  he  wishes  to  have  made,  and  the  president 
then  puts  them  in  such  shape  as  he  sees  fit.  Still 
it  is  a  sort  of  free  fight ;  the  prisoner  can  not  only 
tell  his  story  in  answering  the  president's  interrog- 
atories, but  he  is  left  free,  in  practice  at  least,  to 
interrupt  the  witnesses  with  contradictions  or 
explanations ;  and,  before  the  jury  goes  out,  he 
may  address  them  in  his  own  behalf.  The  counsel 
for  the  defendant  is  partially  shackled,  and  further- 
more the  odds  against  the  defendant  are  usually 
increased  by  the  wonted  hostile  proclivity  of  the 
president.  Still  the  defendant  has  a  chance,  if  he 
be  able,  to  fight  his  own  battle,  and  that  is  a  privi- 
lege which  many  an  accused  man  would  value 
beyond  all  others,  and  which  it  is  utterly  impossi- 
ble for  him  to  enjoy  even  distantly  under  our  laws 
and  regulations. 

The  French  system,  with  divers  modifications, 
but  with  the  preservation  of  its  substantial  princi- 
ples, prevails  over  the  continent  of  Europe.  In 
France  efforts  are  now  making,  or  were  making 
prior  to  the  interruption  of  the  war,  to  introduce 
certain  reforms,  intended  to  effect  an  approxima- 
tion towards  the  English  mode  of  procedure. 
M.  Pr^vost-Paradol  was  an  urgent  advocate  for 
changes  of  this  nature  ;  and  not  long  since  M. 
Ollivier,  in  his  report  to  the  Emperor,  sketched 
an  outline  for  a  new  scheme.  It  is  not  intended 
to  adopt  the  English  system  altogether,  but  only 


PKINCE  PIERRE  BONAPARTE.  271 

portions  of  it ;  thus  making,  as  it  were,  an  amal- 
gam. If  this  shall  prove  possible,  it  will  probably 
also  be  wise.  For,  though  the  French  system  is 
so  grossly  harsh  towards  the  accused,  who  must 
after  all  often  not  be  the  criminal,  that  it  seems 
abhorrent  to  us,  yet,  upon  the  other  hand,  our 
own  system  is  so  grossly  unjust  toward  society 
that  the  French  are  certainly  not  wrong  in  reject- 
ing it  as  only  half  fulfilling  the  acknowledged  ends 
of  criminal  justice.  The  extreme  length  to  which 
fear  of  conviction  can  go  in  deterring  from  the 
commission  of  crime,  must  be  reached  under  the 
French  system.  The  famous  answer  that  so  dis- 
composed Choate  could  never  have  been  given 
in  France  :  "  Oh,"  the  accused  said,  "  never  mind : 
let  us  kill  him,  and  if  we  are  caught  when  we  get 
home,  Choate  will  get  us  off."  Choate,  in  the 
fetters  of  the  French  code,  would  have  been  only 
a  Prometheus  bound.  The  extreme  length  to 
which  society  can  safely  go  in  allowing  criminals, 
whom  all  the  world  knows  to  be  criminals,  to 
escape  by  the  aid  of  technical  rules,  is  reached, 
and  perhaps  is  exceeded,  in  English  law.  It  is 
the  custom  with  us  to  take  it  for  granted  that 
our  system  is  as  nearly  perfect  as  can  be,  and  the 
pending  or  recent  efforts  of  the  French  to  borrow 
from  it  have  been  triumphantly  pointed  at  as 
proof  of  that  fact.  But  this  evidence  does  not 
go  quite  to  the  desired  length.  It  proves  only 
that  the  French  think  their  system  can  be  im- 
proved by  an  admixture  from  our  own.  But  if 
they  thought  ours,  as  it  stands  in  its  entirety,  to 


272  PRINCE  PIERRE  BONAPARTE. 

be  the  best  conceivable  or  practicable  system,  they 
would  adopt  the  whole  instead  of  laboriously  bor- 
rowing a  part.  We  are  at  the  end  of  a  long  arti- 
cle, and  cannot  plunge  into  a  discussion.  Yet 
perhaps  we  may  venture  to  suggest,  as  a  topic  for 
reflection,  whether  the  French  are  not  right  in 
thinking  that  our  criminal  law  is  very  far  from 
perfect,  that  it  could  be  made  much  more  just  to 
society  without  being  really  unjust  to  the  criminal, 
and  that  this  demoralizing  plan  of  giving  a  man 
whom  all  the  world  knows  to  be  guilty,  not  only 
every  natural  but  also  many  artificial  avenues  for 
escape,  is  an  error  as  needless  as  it  is  dangerous. 

Already  it  has  been  found  necessary  in  England 
to  approach,  though  only  by  a  single  and  a  short 
step,  towards  the  French  system.  The  recent 
Habitual  Criminals'  Act,  1869,  throws  upon  those 
members  of  the  law-breaking  community,  whose 
previous  record  of  convictions  and  misconduct 
brings  them  within  this  description,  something 
beyond  even  the  ordinary  burden  of  proof,  —  the 
burden  of  averting  suspicion.  They  are  placed 
under  the  surveillance  of  the  police,  and,  if  found 
without  visible  means  of  honest  support,  or  other- 
wise in  suspicious  circumstances,  they  may  be 
apprehended,  taken  before  a  magistrate,  and  in 
default  of  satisfactory  explanations,  committed  to 
gaol.  The  passage  of  this  act  was  the  result  of  a 
stern  public  necessity.  Just  as  it  was  in  theory, 
logical  in  law,  and  practicable  as  it  has  since  ap- 
peared to  be  in  execution,  it  was  yet  moved  in 
Parliament  with   much  timidity   and  reluctance, 


.     PKINCE  PIEREE  BONAPARTE.  273 

and  was  supported  by  arguments  which,  sound 
as  they  were,  seemed  to  be  weighed  down  by  the 
profusion  of  explanation  and  apology.  The  strong 
common  sense  and  thorough  knowledge  of  its  ad- 
vocates seemed  to  quail  before  the  supposed  force 
of  a  venerable  but  antiquated  hostile  prejudice. 
Their  fears  were  needless,  however,  for  the  people 
at  large  welcomed  the  a;ct  which  all  could  see  to 
be  intrinsically  reasonable,  and  which  all  felt  to 
be  practically  necessary.  Regarded  as  matter  of 
principle,  it  was  a  grave  and  important  innova- 
tion upon  the  established  and  time-honored  funda- 
mental doctrine  of  English  criminal  law.  But  it 
was  an  innovation  for  which  the  mipds  of  English- 
men had  become  prepared  by  an  advance  in  a  sound 
knowledge  of  real  justice,  and  by  observation  of 
the  social  facts  surrounding  them. 


18 


[£aw  Review,  July,  1872.] 

THE  TRIAL   OF  MRS.  WHARTON. 


It  may  be  a  subject  of  doubt  whether  a  criminal 
trial,  resulting  in  an  acquittal,  can  be  justly  re- 
garded as  a  cause  eelebre.  The  denouement  is,  per- 
haps, inadequate  to  sustain  this  dignity.  There  is 
a  certain  sense  of  bathos  when  the  elaborate  prose- 
cution ends  in  a  verdict  of  "  Not  Guilty."  The 
default  of  a  tragic  end  is  an  sesthetic  failure.  In 
this  respect  only  does  the  trial  of  Mrs.  Wharton 
fall  short  of  attaining  the  highest  distinction. 

Whenever  there  is  a  prosecution  upon  a  charge 
of  sufficient  magnitude  to  interest  the  people  at 
large,  there  are  usually  two  trials  going  on  col- 
laterally. The  one  is  conducted  in  the  court-room, 
and  is  decisive  concerning  the  life  or  liberty  of  the 
accused ;  the  other  is  conducted  at  the  bar  of  public 
opinion,  and  has  to  do  only  with  the  more  shadowy 
matters  of  reputation  and  good  name.  Not  unfre- 
quently  the  two  proceedings  have  very  different 
results.  In  the  court-room  a  vast  mass  of  testi- 
mony is  never  heard,  which  nevertheless  the  public 
greedily  listen  to,  and  make  the  basis  of  an  ultimate, 
irreversible  verdict.  We  have  no  desire  to  asperse 
the  established  law  of  evidence  in  criminal  causes, 


MKS.   WHARTON.  276 

which  is  doubtless  capable  of  being  defended  in  the 
most  logical  manner;  yet  though  public  curiosity 
is  often  fed  with  monstrous  falsehoods  and '  out- 
rageous hypotheses,  which  could  never  penetrate 
the  legal  sanctuary,  on  the  other  hand  it  has  the 
benefit  of  much  information  which  would  be  indis- 
pensable to  any  intelligent  man  who  might  wish 
to  arrive  at  an  honest,  though  perhaps  a  strictly 
illegal,  belief  in  the  premises.  Never  was  this 
double  process  better  illustrated  than  in  the  case 
of  Mrs.  Wharton  ;  and  it  is  worth  while,  therefore, 
briefly  to  tell  the  tale  which  passed  from  mouth  to 
mouth  among  her  fellow-citizens,  and  which  created 
such  a  suspicion  and  prejudice  against  her  as  could 
not  be  wholly  allayed  by  the  verdict  of  acquittal, 
rendered  by  jurors  who  were  bound  to  give  the 
prisoner  the  benefit  of  their  possible  doubts. 

General  W.  S.  Ketchum,  of  the  United  States 
army,  the  deceased,  was  a  man  somewhat  past  the 
prime  of  life,  but  still  apparently  sound,  strong, 
and  vigorous,  perhaps  to  an  unusual  degree.  Mrs. 
Wharton  was  the  widow  of  an  army  officer,  and 
was  upwards  of  fifty  years  of  age.  The  two  were 
intimate  friends.  They  had  had  some  money  deal- 
ings together,  in  which  the  general,  who  had  led 
a  frugal  life  and  amassed  a  modest  competence,  had 
lent  sums,  amounting  to  $2600,  to  Mrs.  Wharton. 
She  was  generally  believed  to  be  poor,  though 
boasting  of  property  and  expectations  which  the 
defence  did  not  even  seek  to  establish  upon  the 
trial,  though  the  evidence  would  have  been  perti- 
nent and  important.     She  was  preparing  to  go  to 


276  MRS.   WHARTON. 

Europe,  though  here  again  it  was  currently  re- 
ported that  she  was  short  of  funds  and  unable  to 
procure  her  letter  of  credit. 

On  the  23d  of  June,  1871,  General  Ketchum 
came  from  Washington  to  her  house,  to  bid  her 
farewell,  and  also,  as  he  stated,  to  collect  the 
amount  of  her  indebtedness  to  him,  viz.,  the  $2600. 
He  was  in  good  health  when  he  left  Washington, 
in  good  health  when  he  came  within  her  doors. 
Soon  afterward  he  was  taken  ill.  He  rallied,  but 
again  relapsed,  and  on  the  28th  of  June  he  died. 
In  this  series  of  events  there  was  nothing  more 
extraordinary  or  suspicious  than  is  often  attendant 
upon  the  somewhat  sudden  decease  of  apparently 
robust  men.  But  other  matters  aroused  suspicion. 
The  disease  of  which  the  general  died  was,  at  least 
in  the  opinion  of  his  physician  and  attendants,  sin- 
gular and  obscure.  Whilst  he  lay  dying  another 
gentleman  was  also  strangely  and  unaccountably 
prostrated  by  a  sudden  and  violent  illness  in  the 
same  house,  and  narrowly  escaped^ death.  This 
was  a  Mr.  Van  Ness,  a  near  friend  of  Mrs.  Wharton, 
a  clerk  in  the  banking-house  of  Alexander  Brown 
&  Sons,  of  Baltimore,  and  said  to  have  an  accurate 
cognizance  of  the  accounts  of  the  suspected  lady. 
No  symptoms  of  the  maladies  which  attacked  these 
two  victims  displayed  themselves  in  any  other 
persons  among  the  household  or  guests  of  Mrs. 
Wharton. 

After  the  death  of  General  Ketchum,  his  waist- 
coat was  missing,  and  the  note  of  Mrs.  Wharton  for 
has  never  yet  been  found.     Mrs.  Wharton 


MRS.   WHARTON.  277 

asserted  that  she  had  paid  the  sum  to  the  general, 
received  the  note  from  him,  and,  in  accordance  with 
his  advice,  had  destroyed  it,  there  being  no  witness 
present  during  the  transaction.  So  far  from  being 
indebted  to  him,  she  alleged  the  fact  to  be  precisely 
the  contrary,  and  she  claimed  from  his  estate  four 
thousand  dollars  in  United  States  bonds,  which  she 
asserted  that  he  had  in  his  custody  for  her.  She 
had  no  voucher  for  the  money  or  the  bonds.  No 
memorandum  or  entry  in  any  of  his  books  showed 
that  the  general  had  received  either  the  money  or 
the  bonds.  Yet  he  was  a  man  of  unquestionable 
integrity  and  of  the  most  unusual  scrupulosity  in 
the  matter  of  accounts,  going  in  this  respect '  to 
the  verge  of  pettiness,  so  that  he  was  even  said  to 
have  entered  in  his  books  the  gift  of  one  cent  to  a 
beggar.  In  all  this  the  public  might  have  found 
ground  for  suspicion,  but  not  an  iota  of  proof. 

What  M'as,  or  seemed  to  be,  proof,  however,  was 
furnished  hj  the  following  facts  :  that  tartar-emetic, 
a  substance  containing  an  antimonial  poison,  was 
said  to  have  been  found,  by  chemical  analysis,  in 
the  sediment  of  a  tumbler  of  milk-punch  prepared 
by  the  accused  for  the  general ;  that  twenty  grains 
of  the  same  poison  were  said  to  have  been  dis- 
covered, by  a  post-mortem  examination,  in  the 
stomach  of  the  deceased ;  that  fifteen  grains  of  the 
same  poison  were  reported  to  have  been  found  in  a 
tumbler  of  beer  offered  by  the  accused  to  Mr.  Van 
Ness,  but  not  drunk  by  him ;  that  Mrs.  Wharton 
bought  and  was  possessed  of  tartar-emetic  during 
the  week  when  these  singular  illnesses  occurred  in 
her  household. 


278  MRS.   WHARTON. 

In  these  few  facts  people  easily  found  the  motive 
and  the  means  of  the  crime,  and  the  belief  readily 
became  rife  that  Mrs.  Wharton  had  poisoned  Gen- 
eral Ketchum,  and  had  tried  to  poison  Mr.  Van 
Ness.  She  meanwhile  was  continuing  her  prepara- 
tions to  leave  for  Europe,  and  was  to  have  departed 
from  Baltimore  on  the  evening  of  Monday,  the  10th 
of  July,  1871.  But  upon  that  day  a  warrant  for 
her  arrest  was  issued,  and  the  deputy-sheriff,  armed 
therewith,  visited  her  and  prevented  her  departure. 
It  will  be  seen  that  in  the  trial  which  followed 
much  of  what  has  been  already  narrated  was  neces- 
sarily ruled  out  as  incompetent  evidence.  Upon 
the  trial  for  the  murder  of  one  man,  the  evidence 
of  an  attempt  to  kill  another  man,  though  at  nearly 
the  same  time  and  by  the  same  means,  was  inad- 
missible. The  corroboration  to  be  found  by  the 
public  in  the  story  of  Van  Ness  was  totally  wanting 
to  the  jury  in  the  prosecution  for  the  poisoning  of 
General  Ketchum.  The  question  of  the  poisoning 
was  tried  as  if  no  other  person  had  been  ill  in  Mrs. 
Wharton's  house.  Otherwise  the  facts,  substan- 
tially as  above  narrated,  were  alleged  and  in  great 
part  were  established  by  the  attorneys  for  the  pros- 
ecution. By  reason  of  the  eagerness  of  public 
opinion  in  Baltimore,  it  was  feared  that  a  fair  trial 
could  not  be  had  there,  and  it  was  judged  ex- 
pedient to  change  the  venue  to  Annapolis,  whither 
the  prisoner  was  brought  on  the  2d  of  December, 
1871. 

We  come  now  to  the  history  of  the  trial  itself. 
Mrs.  Chubb,  a  lady  employed  in  the  treasury  de- 


MRS.   WHARTOK.  279 

partment,  and  who  came  from  Washington  with 
General  Ketchiim  to  the  house  of  Mrs.  Wharton, 
testified  that  he  was  ill  and  vomiting  on  Saturday 
night,  after  his  arrival ;  that  he  continued  too  ill  to 
go  to  church  with  her  on  Sunday,  though  he  went 
out  on  that  day ;  that  he  was  ill  again  Sunday 
night,  and  on  Monday  morning  complained  of  a 
sick  stomach  and  giddiness.  Sunday  evening  he 
and  Mrs.  Chubb  each  drank  a  glass  of  lemonade 
prepared  for  them  by  Mrs.  Wharton.  Monday 
afternoon  he  still  complained  of  nausea,  and  sent 
for  a  physician.  Mrs.  Wharton  came  from  his 
chamber  soon  after  the  physician  had  prescribed 
for  him,  and  said  she  had  accidentally  broken  his 
bottle  of  medicine.  Mrs.  Chubb  went  to  the  drug- 
gist's to  replace  it,  and  at  the  same  time,  by  Mrs. 
Wharton's  request,  bought  for  her  a  parcel  of  tartar- 
emetic,  to  be  used,  as  she  said,  for  her  breast. 
Later  in  the  evening  Mrs.  Chubb  saw  Mrs.  Wharton 
shake  this  package  over  a  mustard  plaster,  throw 
the  paper  into  the  slop  jar,  and  apply  the  plaster 
to  her  breast. 

On  Tuesday  the  general  felt  better  ;  he  had 
dismissed  and  paid  his  physician,  and  expected  to 
go  to  Washington  in  the  eleven  o'clock  noon  train. 
But  in  the  afternoon  he  was  vomiting  again,  and 
by  Wednesday  morning  he  was  still  at  Mrs.  Whar- 
ton's, and  sicker  than  ever.  The  doctor  prescribed 
for  him,  administered  a  dose  of  medicine  to  him  in 
the  presence  of  Mrs.  Hutton,  a  sister  of  Mrs.  Van 
Ness,  and  gave  directions  as  to  administering  a 
second  dose  at  one  o'clock.    Before  half-past  twelve 


280  MRS.   WHARTON. 

o'clock  Mrs.  Wharton  appeared,  saying  that  she 
had  dropped  the  medicine,  and  was  anxious  to  give 
it  to  him.  She  manifested  no  small  degree  of  haste 
to  give  it  before  the  appointed  hour,  stating  as  her 
reason  that  the  previous  dose  had  appeared  to  do 
him  so  much  good.  The  dose  prepared  by  Mrs. 
Wharton  was  larger  than  that  prepared  by  the 
doctor,  but  she  said  she  had  added  more  water,  and 
insisted  somewhat  strenuously  upon  giving  it.  The 
cup  and  spoon  in  which  the  medicine  was  mixed 
and  administered  were  retained  by  Mrs.  Wharton. 
About  fifteen  minutes  after  the  dose  was  taken  by 
the  general,  he  manifested  symptoms  of  pain  and 
uneasiness.  He  clutched  at  the  back  of  his  neck, 
at  his  throat,  chest,  and  stomach  with  such  violence 
as  to  abrade  the  skin  upon  the  throat.  He  made 
convulsive  efforts  to  raise  his  body,  from  his  head 
to  his  legs.  When  he  was  moved,  his  legs  appeared 
to  be  stiffened.  He  uttered  inarticulate  cries,  and 
had  a  series  of  convulsions.  A  witness,  who  saw 
the  dose  prepared  by  Mrs.  Wliarton,  stated  that  it 
was  unlike  in  color  to  a  dose  which  was  made  up 
in  the  court-room  according  to  the  doctor's  pre- 
scription. The  dose  given  was  of  a  grayish  or 
leaden  color,  and  turbid,  which  was  not  the  case 
with  the  yellow  jasmine,  or  the  mixture  of  yellow 
jasmine  and  chloral,  which  were  the  doses  ordered 
by  the  physician.  But  this  witness  further  stated, 
that  in  view  of  the  suspicion  in  this  case,  he  had 
added  tartar-emetic  to  the  yellow  jasmine,  and  the 
product  had  not  resembled  the  dose  prepared  by 
Mrs.  Wharton. 


MRS.   WHARTON.  281 

Evidence  was  adduced  showing  that  some  ihilk- 
punch  was  prepared  on  Wednesday  by  Mrs.  Van 
Ness,  that  she  gave  a  glass  of  it  to  her  husband^ 
and  it  was  admitted  that  he  experienced  no  ill 
effects  from  it.  The  remainder  was  poured  into  a 
tumbler  and  left  in  a  little  refrigerator.  This  tum- 
bler, which  was  destined  to  play  a  significant  part 
in  the  trial,  next  appears  in  the  hands  of  Mrs.  Van 
Ness.  The  sister  of  Mr,  Van  Ness  entered  the  din- 
ing-room and  found  Mrs.  Van  Ness  standing  with 
a  wineglass  in  her  hand,  into  which  she  had  poured 
the  fluid  from  the  tumbler  ;  the  tumbler  stood  upon 
the  table  with  a  peculiar-looking  deposit  in  it.  The 
conversation  between  the  two  ladies  was  of  course 
incompetent,  but  Mrs.  Loney,  the  sister,  understood 
that  there  was  a  suspicion  of  something  wrong 
about  the  sediment  in  the  tumbler.  She  tasted  it, 
and  found  that  it  left  a  metallic  taste  in  her  mouth 
and  a  grating  sensation  in  her  throat.  The  ladies 
took  pains  to  conceal  their  suspicions  from  Mr. 
Van  Ness,  and  l^rs.  Loney  put  the  tumbler  in  her 
pocket,  first  tying  her  handkerchief  tightly  over  it 
to  protect  the  moist  contents,  and  kept  it  until  it 
could  be  safely  handed  by  her  to  Dr.  Chew.  Mrs. 
Helen  Van  Ness,  the  wife  of  the  sick  man,  testified 
that  she  made  this  punch  in  the  presence  of  Mrs. 
Wharton,  Mrs.  Hutton,  and  Mrs.  Van  Ness ;  that 
Mrs.  Wharton  suggested  making  a  double  quantity  ; 
that  she  did  so,  — took  half  to  her  husband  and  left 
the  other  half  in  the  refrigerator;  that' some  time 
afterward,  coming  back  to  the  refrigerator  and 
pouring  the  punch  from  the  tumbler  into  a  wine- 


282  MKS.   WHAETON. 

glass,  she  noticed  a  sediment  in  the  tumbler.  She 
tasted  this  sediment,  and  it  tasted  like  a  brass  pin. 
She  made  a  fresh  punch  for  her  husband.  She 
drank  some  of  the  milk  after  making  the  punch, 
without  ill  effect.  The  ingredients  of  the  punch 
were  milk,  whiskey,  and  one  lump  of  sugar. 

The  testimony  concerning  the  indebtedness  be- 
tween the  parties,  given  by  the  sons  of  General 
Ketchum,  showed  that  soon  after  his  decease  Mrs. 
Wharton  called  upon  the  son  and  demanded  the 
14000  in  United  States  bonds.  She  then  stated 
that  she  had  paid  the  $2600  in  two  instalments,  to 
wit :  On  July  1,  1870,  she  had  paid  |loO  interest, 
and  $1300  on  account  of  principal ;  on  January  17, 
1871,  she  had  paid  $65  interest  and  the  balance  of 
the  principal ;  but  she  had  destroyed  the  note  at  the 
general's  advice  ;  had  taken  no  receipts  for  prin- 
cipal or  interest ;  had  paid  in  cash,  received  from 
rents  and  other  sources,  and  had  mentioned  to  no 
one  that  she  had  so  much  money  in  her  possession. 
The  son  afterward  produced  his  father's  pocket 
diary,  and  read  from  it  to  Mrs.  Wharton  the  fol- 
lowing memoranda :  "  Interest  on  E.  G.  W.'s  note, 
17  January,  1870,  $130."  "Interest,  ditto,  17 
July,  1870,  $130."  ''January  25,  1871,  interest 
from  E.  G.  W.,  $130."  Mrs.  Wharton  interrupted, 
saying  she  had  paid  that  money,  and  that  the  last 
entry  of  interest  should  have  been  $65.  She  also 
said  that  she  had  noticed  of  late  that  General 
Ketchum's  memory  had  sometimes  appeared 
blurred.  In  the  course  of  the  testimony  of  this 
witness,   it   was   made    to    appear    that    General 


MKS.   WHABTON.  288 

Ketchum  had  said  that  he  was  going  to  Balti- 
more to  collect  the  note  which  Mrs.  Wharton 
owed  him.  It  was  carefully  explained  to  the  jury 
that  this  evidence  was  not  entitled  to  the  weight 
of  evidence  of  the  fact  of  indebtedness.  The 
books  of  General  Ketchum  were  offered  in  evi- 
dence by  the  state's  attorneys,  but  were  not  ad- 
mitted. The  son  testified  that  he  examined  his 
father's  clothing  in  Mrs.  Wharton's  presence,  look- 
ing for  the  note,  but  that  he  did  not  find  it.  At 
the  time  of  this  investigation  the  missing  waistcoat 
had  again  reappeared.  The  son  stated  that  it  was 
his  father's  habit  to  carry  his  valuable  papers 
pinned  up  in  his  inside  waistcoat  pocket. 

Marshal  Frey  testified  that  when  he  first  called 
upon  Mrs.  Wharton  he  intimated  suspicions  against 
other  persons,  suggesting  some  servant  in  the  house 
as  the  probable  criminal.  She  strenuously  repudi- 
ated the  idea ;  said  that  she  had  bought  tartar- 
emetic  while  the  sickness  was  in  the  house,  but  had 
made  the  purchase  herself ;  had  put  the  parcel  into 
her  portemonnaie,  and  had  only  taken  it  thence  at 
the  time  of  applying  it  to  her  breast,  so  that  no  one 
else  could  by  any  possibility  have  got  at  it.  Twice 
Mrs.  Wharton  offered  money  to  the  marshal,  on 
the  ground  that  he  must  be  at  a  great  deal  of  trou- 
ble in  her  case,  for  which  she  wished  him  to  receive 
compensation.  She  was  emphatic  in  refusing  to 
suspect  any  of  her  servants  of  the  alleged  poison- 
ing. 

On  Tuesday  Mrs.  Wharton  bought  some  brown 
stout,  and  prepared  some   sangaree  for   General 


284  MKS.   WHARTON. 

Ketchum.  She  took  it  to  him,  and  on  her  return 
said  that  he  drank  it.  She  was  not  particularly 
observed  while  mixing  it. 

Mr.  Van  Ness  was  called  by  the  attorneys  for  the 
state.  They  proposed  to  prove  by  him  that  he  lay 
sick  at  Mrs.  Wharton's  house  all  the  while  that 
General  Ketchum  also  lay  sick  there ;  that  his 
symptoms  were  the  same  with  those  of  the  general ; 
that  tartar-emetic  was  found  in  the  vessels  in  use 
in  Mr.  Van  Ness's  sickness  ;  and  that  Mrs.  Whar- 
ton knew  of  the  deadly  character  of  the  medicine. 
After  listening  to  an  elaborate  argument  by  counsel, 
the  Court  ruled  out  this  testimony  on  the  obvious 
ground  that  it  belonged  to  another  case.  The  state 
then  proposed  "  tQ  introduce  evidence  to  show  that 
whilst  the  deceased  lay  languishing  in  the  prisoner's 
house,  certain  articles  of  food  and  drink,  to  wit, 
milk  and  beef  tea,  were  taken  to  the  house ;  that 
when  taken  there  these  articles  were  free  from  all 
noxious  or  poisonous  qualities  ;  that  after  they  had 
been  a  short  time  in  the  house,  and  in  places  where 
the  prisoner  had  knowledge  of  them,  these  same 
articles  were  found  to  be  impregnated  with  poison, 
as  far  as  that  fact  can  be  shown  by  the  taste  of  the 
poison,  and  the  symptoms  of  those  affected  by  it ; 
and  further,  that  the  symptoms  of  those  who  had  oc- 
casion to  make  use  of  the  milk  and  beef  tea,  indicated 
the  presence  of  tartar-emetic."  Had  they  been 
allowed  to  show  these  facts,  the  counsel  for  the 
prosecution  would  have  had  little  difficulty  in  bring- 
ing substantially  within  the  knowledge  of  the  jury 
the  main  circumstances  concerning  the  illness  of  Van 


MRS.   WHARTON.  286 

Ness,  and  the  poison  found  in  articles  appropriated 
for  his  use.  The  strength  of  their  case  would  have 
been  increased  by  all  the  corroborative  suspicion 
inevitably  to  be  derived  from  this  source.  The 
decision  of  the  Court  was  of  grave  moment  for  the 
defence,  and  fortunately  for  them  it  accorded  with 
the  spirit  of  the  ruling  already  made.  The  chief 
judge  said  that  the  Court  would  admit  a  part  only 
of  the  proffered  testimony.  It  was  competent  to 
show  that  tartar-emetic  had  been  found  in  Mrs. 
Wharton's  house,  and  it  could  be  proved  by  persons 
who  tasted  it,  but  not  by  the  symptoms  of  those 
affected  by  it.  If  any  person  could  aver  that  he 
had  tasted  poison  in  Mrs.  Wharton's  house,  that 
would  be  admissible  in  order  to  puove  the  existence 
of  that  article  at  that  place.  The  fangs  having 
been  thus  drawn  from  the  proposition,  the  prosecut- 
ing officers  refrained  from  advancing  the  mutilated 
residue  ;  and  all  prospect  of  bringing  in  any  of  the 
facts  connected  with  Mr.  Van  Ness  was  evidently 
at  an  end. 

The  counsel  for  the  prisoner  made  an  effort  to 
show  that  if  the  deceased  died  from  the  administra- 
tion of  any  noxious  drug,  it  was  from  laudanum, 
v/ith  which  he  secretly  dosed  himself.  This  at- 
tempt was,  however,  lamentably  weak  and  ill-sus- 
tained ;  nor  indeed  did  it  accord  with  the  testimony 
even  of  those  medical  experts  Avho  were  called  by 
the  defence.  It  seemed  that  Mrs.  Wharton  had 
already,  before  the  charge  had  been  preferred 
against  her,  sought  in  a  quiet  way  to  convey  this 
opinion  to  a  few  persons  nearly  interested  in  the 


286  MRS.   WHARTON. 

general.  The  conversations  in  which  she  had 
made  remarks  to  this  general  effect  were  repeated 
in  the  course  of  the  testimony.  The  defence  tried 
to  show  that  the  general  had  been  in  the  habit  of 
dosing  himself,  but  they  made  poor  work  of  it. 
The  only  substantial  evidence  was  that  of  Susan 
Jacobs,  a  colored  cook  in  the  employ  of  Mrs.  Whar- 
ton. How  this  witness  may  have  appeared  upon 
the  stand  we  are  unable  to  say,  but  the  impression 
which  the  printed  narrative  of  her  testimony  con- 
veys is  by  no  means  favorable  to  its  perfect  credi- 
bility. Her  faithful  zeal  in  behalf  of  her  mistress, 
and  her  mistress's  eager  rejection  in  the  first  instance 
of  the  idea  that  the  poisoning  could  have  been  done 
by  her  servants,  are  suggestive  of  the  two  sides  of 
an  equation.  This  servant  stated  that  on  Tuesday, 
in  the  early  part  of  the  day,  she  found  General 
Ketch um  in  a  kind  of  drowsy  sleep.  He  bade  her 
let  him  alone,  and  he  would  soon  sleep  it  off  and 
feel  better ;  he  further  said  that  he  did  not  think 
the  doctor  had  dosed  him  enough,  and  he  had  taken 
a  dose  of  his  own  medicine  which  he  knew  was 
sufficient.  Later  in  the  day  the  same  servant  — 
Mrs.  Wharton  and  the  general  being  present  in 
the  room  —  made  up  his  bed,  and  in  so  doing,  ac- 
cording to  her  statement,  a  little  vial  rolled  from 
the  bedding  on  to  .the  floor.  This  she  picked  up, 
smelt  laudanum  in  it ;  saw  only  a  drop  or  two  left 
in  it,  and  gave  it  to  Mrs.  Wharton.  The  bottle 
was  produced,  and  a  Baltimore  druggist,  a  member 
of  a  firm  whose  name  appeared  on  the  cork  of  the 
bottle,  examined  it.     He  said  that  if  the  vial  had 


MRS.   WHARTON.  SSt 

been  purchased  from  him  on  June  24,  it  would  not 
now  have  the  incrustation  which  he  saw  upon  it. 
It  would  require  fully  six  months  or  a  year  for  the 
substance  to  assume  its  present  look  and  collect  the 
present  sediment. 

Testimony  was  introduced  by  the  defence  as  to 
the  good  character  of  Mrs.  Wharton,  but  it  was 
remarked  that  the  majority  of  the  witnesses  came 
from  some  other  place  than  Baltimore.  The  ques- 
tion put  to  one  of  the  witnesses :  "  From  your 
knowledge  of  Mrs.  Wharton's  general  reputation 
as  to  the  qualities  of  humanity,  kindness,  and 
amiability,  as  you  have  testified  to,  would  you 
or  would  you  not  believe  her  capable  of  commit- 
ting the  crime  of  murder?"  Avas  objected  to.  A 
long  argument  ensued  between"  counsel,  and  the 
Court  ruled  the  question  out.  The  testimony 
which  was  admitted  was  of  a  vague  character, 
meaning  little  more  than  that  she  was  a  pleasant, 
amiable,  kindly-seeming  lady,  about  whom  none 
of  the  witnesses  remembered  to  have  heard  dis- 
agreeable gossip. 

Dr.  P.  C.  Williams,  a  physician  who  had  been 
in  practice  for  eighteen  years  in  Baltimore,  was 
called  to  attend  General  Ketchum  on  Monday, 
June  25th,  in  the  afternoon.  He  described  the 
symptoms  which  he  observed,  and  the  remedies 
which  he  applied,  as  follows  i  The  patient  was 
much  nauseated,  vomiting  every  few  minutes;  his 
pulse  was  weak  and  rapid.  The  first  notion  of  the 
doctor  was  that  the  complaint  was  cholera-morbus. 
The  prescription  was  two  drops  of  creosote  and  a 


288  MRS.   WHARTON. 

table-spoonful  of  lime-water,  to  be  repeated  every 
two  hours  until  relief.  The  next  morning,  Tues- 
day, about  ten  o'clock,  the  doctor  called  again ; 
found  the  general  sleeping  and  roused  him.  He 
seemed  better ;  professed  his  intention  of  return- 
ing to  Washington  that  day,  and  paid  the  doctor 
for  his  services.  Both  were  of  opinion  that  no 
further  dosing  was  necessary.  The  witness  was 
next  summoned  again  on  Wednesday  morning, 
about  ten  o'clock,  and  found  the  sick  man  lying 
on  a  sofa  upon  his  right  side,  having  his  face  to 
the  back  of  the  sofa.  His  head  and  face  were 
very  much  congested;  the  face  was  red,  of  a  shade 
suggesting  a  purple  tinge.  He  made  no  reply  when 
the  doctor  sought  to  rouse  him  by  speaking  to  him 
and  touching  him,  but  the  touch  caused  a  slight 
convulsive  tremor  to  pass  over  him  fi-om  head  to 
foot.  When  he  was  finally  aroused  and  asked 
how  he  was,  he  said,  "  tolerably ; "  muttered  re- 
plies to  some  other  commonplace  questions,  and 
relapsed  into  the  same  condition  already  described. 
With  the  aid  of  Mr.  Hutton,  the  doctor  got  the 
patient  from  the  sofa  to  the  bed,  noticing  as  he  did 
so  that  the  arms  and  legs  were  stiff  and  rigid,  so 
that  it  was  necessary  to  slide  his  feet  along  the 
floor  and  lift  them  up  on  the  bed.  The  prescrip- 
tion was  for  an  application  of  ice  to  the  head,  and 
a  dose  of  forty  drops  of  the  tincture  of  yellow  jas- 
mine, to  be  given  every  two  hours  in  two  table- 
spoonfuls  of  water.  It  was  the  second  of  these 
two  doses  which  should  have  been  given  at  one 
o'clock,  and  which,  as  has  been  already  narrated, 


MRS.   WHARTON.  289 

^Irs.  Wharton  prepared  and  was  so  anxious  to 
administer  before  that  hour  arrived.  The  doctor 
then  left  the  room  and  was  shown  the  laudanum 
bottle  and  heard  the  story  of  its  discovery.  With 
reference  to  this  the  physician  testified  that  he 
told  Mrs.  Wharton  that  he  was  glad  it  had  been 
found,  since  it  explained  the  patient's  condition, 
who,  if  he  had  taken  nothing  but  laudanum,  would 
recover.  The  doctor  said  he  had  seen  many  cases 
of  opium  poisoning,  but  that  in  this  case  he  found 
no  evidence  of  a  dangerous  amount  of  opium  having 
been  taken ;  the  contraction  of  the  pupils  of  the 
eyes  which  would  have  followed  such  a  dose  was 
not  present;  the  breathing  was  not  of  the  slow 
and  laborious  character  to  be  expected  in  such  a 
case,  nor  was  there  the  customary  muscular  relax- 
ation. The  pulse,  also,  though  feeble,  was  much 
too  rapid.  After  a  short  absence  the  doctor  re- 
turned to  the  sick-room.  He  found  the  sick  man 
in  a  semi-comatose  state ;  the  pupils  of  the  eye 
were  of  a  natural  size,  but  almost  wholly  insensi- 
ble to  light.  The  doctor  prepared  the  first  dose  of 
the  medicine,  and  found  the  general's  teeth  so 
clenched  that  it  was  matter  of  considerable  diffi- 
culty to  get  the  spoon  into  his  mouth.  Having 
sat  for  some  few  minutes  by  the  bedside  to  watch 
the  effects  of  the  medicine,  and  seeing  that  it  was 
evidently  working  well,  the  color  and  eye  of  the 
patient  manifestly  improving,  the  doctor  left,  giving 
directions  for  the  second  dose  at  one  o'clock.  But 
about  one  o'clock  he  was  called  again,  and  found 
the  general  was  in  convulsions.     His  first  impres- 

19 


290  MRS.   WHAKTON. 

sion  in  the  morning  had  been  that  the  general  had 
apoplexy ;  this  was  dissolved  by  the  appearance 
of  rigidity  in  the  limbs ;  and  next  he  feared  paral- 
ysis. Now  the  idea  of  urinic  poison  suggested 
itself.  He  accordingly  administered  chloroform, 
and  used  the  catheter ;  but  upon  testing  the  urine 
he  found  it  perfectly  healthy.  The  convulsions 
were  peculiar,  the  patient  seeking  apparently  to 
throw  himself  from  side  to  side.  The  doctor 
noticed  the  abrasions  on  his  throat,  forehead,  and 
stomach.  Not  wishing  to  allow  chloroform  to  be 
administered  by  inexperienced  persons,  he  pre- 
scribed thirty  grains  of  chloral. 

The  doctor  remarked  to  a  Mr.  Snowden,  before 
his  last  visit  to  his  patient,  about  two  o'clock,  that 
he  feared  the  general  had  been  poisoned.  While 
his  suspicions  were  thus  aroused  he  had  a  con- 
versation with  Mr.  Hutton,  which,  of  course,  he 
was  not  allowed  to  repeat.  But  the  result  was 
that  he  had  an  interview  with  Mrs.  Loney,  the 
lady  in  whose  charge  the  suspected  tumbler  then 
was,  and  the  tumbler  was  shown  him.  He  tasted 
a  particle  of  the  sediment,  and  found  it  had  a 
strong  metallic  taste  and  burnt  his  tongue.  There- 
after he  returned  to  General  Ketchum's  room  with 
his  doubt  very  much  changed  into  conviction,  and 
found  the  general  growing  rapidly  worse.  A  few 
minutes  after  death  occurred.  The  doctor  im- 
mediately searched  the  dead  man's  clothing,  but 
could  find  no  waistcoat  and  no  note  signed  by  Mrs. 
Wharton. 

At  eleven  o'clock  the  next  mornino^  Dr.  Wil- 


MES.   "WHAKTON.  291 

liams,  assisted  by  Drs.  Chew  and  Miles,  made  a 
post-mortem  examination  at  the  undertaker's.  They 
examined  the  brain,  liver,  kidneys,  and  spleen,  and 
found  them  all  apparently  healthy  ;  though  in  the 
brain  there  were  minute  little  red  points,  spoken 
of  in  the  books  as  punctiform  congestion ;  but 
there  was  no  effusion  of  blood  or  serum,  and  the 
points  might  naturally  follow  a  prolonged  death- 
struggle.  The  bowels  were  opened,  and  no  note- 
worthy appearance  found,  save  occasional  points 
of  congestion.  The  heart  and  lungs  were  not 
now  examined,  but  afterward,  when  the  grand 
jury  had  found  the  indictment,  the  same  physi- 
cians went  to  Washington,  had  the  body  exhumed, 
examined  tho^e  organs,  and  found  them  sound  and 
healthy.  About  two  inches  of  the  spinal  column 
were  examined  and  found  healthy.  A  ligature 
was  applied  above  and  below  the  stomach,  which 
was  then  taken  carefully  out,  placed  in  a  clean 
glass  jar,  and  sent  by  the  hands  of  Dr.  Chew  to 
Dr.  Aikin. 

With  regard  to  the  poisonous  action  of  tartar- 
emetic,  Dr.  Williams  testified  that  the  symptoms 
were  pain  and  constriction  in  the  throat ;  a  metal- 
lic taste  in  the  mouth ;  pain  and  griping  in  the 
stomach ;  usually  extreme  relaxation  up  to  a  cer- 
tain point,  and  then  a  stiffness  or  tetanic  condi- 
tion, especially  about  the  neck,  arms,  and  legs ; 
a  reddish-bluish  livid  appearance  about  the  sur- 
face, resulting  from  the  weakening  force  of  the 
poison  upon  the  heart,  producing  a  passive  con- 
gestion throughout  the  venous  system :  a  stupor, 


292  MRS.   WHAETO]Sr. 

more  or  less  profound ;  an  increase,  rather  than 
a  diminution  of  urine ;  sometimes  profuse  vomit- 
ing, but  sometimes  none  at  all. 

Dr.  Samuel  P.  Chew,  of  Maryland  University, 
summoned  by  the  prosecution,  enumerated  sub- 
stantially the  same  symptoms,  adding  that  the 
pulse  was  generally  depressed ;  that  giddiness 
might  be  caused,  but  actual  insensibility  he  had 
never  known  to  follow  even  excessive  doses  of 
the  poison.  There  was  a  striking  similarity  be- 
tween some  of  the  symptoms  of  poisoning  by  tar- 
tar-emetic and  cholera-morbus.  He  regarded  the 
case  as  a  very  obscure  one,  as  to  which  he  would 
give  no  fixed  opinion,  but  from  Dr.  Williams's  de- 
scription of  the  case,  and  from  what  he  had  seen 
in  the  post-mortem  examinations,  he  thought  death 
did  not  supervene  from  natural  causes. 

Professor  Miles,  also  of  Maryland  University, 
from  the  narration  of  the  symptoms  and  from  what 
he  saw  at  the  post-mortem  examination,  was  of 
opinion  that  General  Ketchum  did  not  die  from 
natural  causes. 

Dr.  Chew  did  not  think  that  those  specific  par- 
ticles of  tartar-emetic  which  were  found  in  the 
stomach  caused  the  death.  The  poison  which 
produced  this  effect  would  have  been  found  in 
other  organs,  the  kidneys,  liver,  or  alimentary 
canal ;  for  tartar-emetic  only  becomes  fatal  after 
being  absorbed  into  the  system. 

Dr.  Miles  also  said  that  before  the  tartar-emetic 
could  act  to  produce  death  it  must  be  absorbed, 
and  would  thereafter  be  found  by  an  analysis  of 


MKS.   "WHARTON.  293 

the  liver  or  kidneys.  The  information  obtained 
from  the  post-mortem  examination  would  not  alone 
suffice  to  explain  the  death. 

Dr.  Donaldson  said  that  the  tartar-emetic  must 
be  absorbed  and  pass  into  the  system  in  order  to 
produce  death.  But  the  process  of  absorption 
was  a  very  rapid  one.  Thereafter  it  would  of 
course  be  in  the  blood  or  other  organs  rather 
than  in  the  stomach.  He  thought  the  case,  as 
described,  a  very  obscure  one,  resembling  in  cer- 
tain particulars  divers  known  diseases,  yet  want- 
ing some  of  the  chief  symptoms  of  each.  The 
symptoms  certainly  corresponded  substantially 
with  those  of  poisoning  by  tartar-emetic,  as  given 
in  the  medical  authorities.  From  the  symptoms 
alone,  or  from  the  post-mortem  examination  alone, 
he  would  not  have  given  an  opinion  as  to  the 
cause  of  death.  He  must  base  any  opinion  on 
the  two  together. 

Dr.  J.  Harry  Thompson  had  had  some  actual 
experience  with  patients  who  had  been  dosed 
with  tartar-emetic.  The  symptoms  he  recited 
were  very  like  those  of  General  Ketchum.  He 
did  not  think  the  general  died  from  natural 
causes. 

From  the  testimony  of  the  various  physicians 
in  this  case,  it  would  appear  that  yellow  jasmine 
was  a  somewhat  unusual  drug,  though  not  by 
any  means  unknown  in  its  operation,  or  danger- 
ous in  doses  no  greater  than  were  taken  by  Gen- 
eral Ketchum.  It  appeared  to  be  a  rather  favorite 
recipe  with  Dr.  Williams.     Its  action  was  to  relax 


294  MRS.   WHARTON. 

the  nerves.  The  solution  was  prepared  by  mac- 
erating four  ounces  of  the  root  in  twelve  ounces 
of  diluted  alcohol.  The  symptoms  of  an  overdose 
would  be  a  wide  dilation  of  the  pupils  of  the  eyes, 
and  a  consequent  impairing  of  the  vision  ;  a  paral- 
ysis of  the  eyelids,  so  that  the  patient  could  not 
open  his  eyes :  a  profuse  perspiration,  caused  by 
the  relaxation ;  the  breathing  and  the  action  of 
the  heart  natural  in  the  earlier  stages,  but  after- 
ward becoming  hurried  and  quick.  None  of  these 
symptoms  were  noticed  by  Dr.  Williams  in  the 
case  of  General  Ketchum,  On  the  contrary,  the 
action  of  this  medicine  should  have  been  to  pre- 
vent convulsions.  Eighty  drops  would  not  be  an 
overdose  ;  forty  drops  was  the  amount  ordered  for 
General  Ketchum. 

The  stomach  was  delivered  by  Dr.  Williams  to 
Dr.  Aikin,  with  the  statement  only  that  poison  was 
suspected.  Dr.  Aikin,  also  of  Maryland  Univer- 
sity, understood  that  he  was  desired,  as  a  chemical 
expert,  to  examine  the  contents  of  the  stomach, 
and  report  whether  or  not  he  found  there  any  thing 
of  a  poisonous  character.  His  first  thought  was  of 
strychnine,  then  of  arsenic.  He  failed  to  find  indi- 
cations of  either  of  these.  In  searching  for  strych- 
nine the  doctor  used  in  the  first  instance  tartaric 
acid,  and  afterward  bicarbonate  of  soda.  The  origi- 
nal ma,tter,  with  the  addition  of  these  ingredients, 
was  then  separated  into  two  parts,  and  one  of  these 
parts  was  used  for  the  purpose  of  searching  for 
arsenic.  The  result  showed  no  arsenic,  but  aroused 
the  suspicion  of  antimony,  and  the  doctor  had  re- 


MRS.   WHARTON.  296 

course  to  the  other  part  to  search  for  antimony. 
His  description  of  his  process  was  as  follows  :  He 
added  an  excess  of  tartaric  acid,  filtered  it,  and 
examined  the  filtrate  with  sulphuretted  hydrogen. 
This  examination  was  made  by  passing  through 
the  material  a  stream  of  sulphuretted  hydrogen 
gas,  to  ensure  the  action  of  which  heat  was  applied 
to  the  vessel  containing  the  material,  and  while 
the  gas  was  passing  through,  the  temperature  was 
raised ;  it  was  then  allowed  to  stand  and  cool  for 
twenty-four  hours ;  the  operation  was  repeated  a 
second  time.  The  result  was  an  abundant  brown- 
ish red  or  reddish-brown  precipitate.  There  seemed 
no  necessity  for  destroying  the  organic  matter,  and 
the  chemist  did  not  use  muriatic  acid  and  chlorate 
of  potash.  The  precipitate,  when  separated  and 
dried,  was  dissolved  in  muriatic  acid.  Muriatic 
acid  was  not  used  in  preparing  the  material.  The 
hydrochloric  solution,  when  dropped  into  water, 
gave  a  white  precipitate  ;  upon  treating  this  with 
sulphide  of  ammonium  it  became  orange-red.  It 
was  also  soluble  in  a  solution  of  tartaric  acid.  This, 
Dr.  Aikin  said,  completed  all  that  was  necessary 
to  satisfy  him  that  he  had  been  dealing  with  some 
preparation  of  antimony  ;  he  knew  of  nothing  else 
which  could  yield  such  results.  The  only  com- 
pound of  antimony  used  in  commerce,  with  which 
he  was  acquainted,  was  tartar-emetic,  whence  he 
inferred  that  tartar-emetic  had  found  admission 
into  the  stomach.  But  the  only  certainty  was  that 
antimony  was  present. 

Upon  the  question  of  amount  he  w^as  not  willing 


296  MRS.   WHARTOK. 

to  testify  accurately ;  but  by  approximation  he  esti- 
mated it  at  about  twenty  grains.  His  theory  was 
that  ten  grains  of  sulphide  of  antimony  would 
imply  not  exactly  but  very  nearly  twenty  grains 
of  tartar-emetic. 

The  same  physician  investigated  the  character 
of  the  sediment  in  the  tumbler.  He  tasted  a  frag- 
ment of  white  arsenic,  a  crystal  of  tartar-emetic, 
and  the  sediment,  in  order  to  compare  the  respec- 
tive tastes.  The  resemblance  was  between  the 
sediment  and  the  tartar-emetic,  and  he  accordingly 
sought  for  antimony.  He  used  the  same  process 
as  already  described,  with  the  addition  of  one  more 
test ;  for  where  tartar-emetic  is  not  mixed  with 
organic  matter,  it  has  the  property,  when  acted  on 
by  a  drop  of  hydrochloric  acid,  of  giving  a  white 
precipitate  which  is  soluble  in  an  excess  of  the 
acid.  This  experiment  he  made,  and  it  sustained 
his  suspicion.  He  then  treated  a  portion  of  his 
material,  as  before,  with  sulphuretted  hydrogen, 
and  procured  a  precipitate  of  orange-red  su]j)hide 
of  antimony.  This  precipitate  was  collected,  dried, 
and  heated  with  boiling  hydrochloric  acid.  The 
solution  yielded  a  white  precipitate,  which  was 
soluble  in  tartaric  acid,  and  which,  when  treated 
with  sulfAide  of  ammonium,  became  orange-red. 
This  again  satisfied  the  professor  of  the  presence 
of  an  antimonial  poison,  doubtless  tartar-emetic. 

With  a  view  to  determining  the  quantity  present 
he  weighed  out  one  grain  of  the  sediment  from 
the  tumbler.  The  dried  sulphide  of  antimony 
obtained  therefrom  weighed  four-tenths  of  a  grain  ; 


MRS.   WHARTON.  297 

the  amount  of  tartar-emetic  present  would,  there- 
fore, be  about  eight-tenths  of  a  grain.  In  his  judg- 
ment about  fifteen  grains  of  the  compound  were 
present,  and  therefore,  to  be  within  bounds,  he 
should  say  there  were  at  least  ten  grains  of  tartar 
emetic  in  the  sediment. 

After  tartar-emetic  has  passed  into  the  stomach 
it  ceases  to  exist  precisely  as  such.  It  becomes 
dissolved,  and  cannot  be  found  in  the  shape  of 
tartar-emetic.  But  the  antimony,  which  is  a  con- 
stituent of  the  tartar-emetic,  cannot  be  thus  de- 
stroyed, and  it  is  that  which  must  be  sought  for, 
and  which  alone  can  be  found.  The  professor  fur- 
ther said  that  all  the  chemical  agents  used  by  him 
were  pure.  He  had  unfortunately  neglected  to 
preserve  any  of  the  results  of  his  processes.  When 
making  the  examination  he  had  no  knowledge  as 
to  what  medicines  had  been  administered  to  the 
deceased,  and  had  not  heard  of  the  doses  of  yellow 
jasmine  and  chloral.  All  he  did  was  to  satisfy  his 
own  mind  of  the  presence  of  antimony  by  the  use 
of  tests  which  he  deemed  sufficient  and  conclusive. 
Having  thus  made  up  his  own  mind,  he  took  no 
further  trouble,  regarding  his  duty  as  performed. 
He  might  have  obtained  the  metallic  antimony, 
provided,  of  course,  that  it  was  really  present.  He 
had  the  necessary  means,  to  wit.  Marsh's  test,  at 
hand,  but  he  did  not  use  it,  and  did  not  seek  or 
obtain  the  metal. 

Professor  William  P.  Tonry,  an  analytical  chem- 
ist, was  requested  to  examine  the  liver  and  kidneys, 
which  were  removed  from  the  body  after   exhu- 


298  MRS.    WHARTON. 

mation  by  Drs.  Williams  and  Chew.  He  was  re- 
quested to  search  only  for  antimony.  It  is  but  just 
to  him  to  say  that  his  examination  was  conducted 
with  the  most  scrupulous  care.  He  protected  with 
sealing-wax,  impressed  with  his  private  seal,  both 
the  room  and  the  receptacles  used  by  him,  when- 
ever he  was  obliged  to  leave  them.  A  full  descrip- 
tion of  the  chemical  processes  resorted  to  by  him 
would  be  lengthy,  tedious,  and  useless.  It  suffices 
to  say  that  he  brought  his  examination  to  the  same 
point  to  which  Dr.  Aikin  had  already  conducted 
his  processes  in  the  examination  of  the  contents  of 
the  stomach.  The  same  tests  which  satisfied  Dr. 
Aikin  also  satisfied  him.  He  did  not  get  the  metal 
antimony,  nor  did  he  try  to  get  it,  except  in  so 
minute  a  quantity  that  it  was  impossible  to  say  with 
absolute  certainty  that  it  was  the  metal.  He  was 
satisfied  to  stop  short  of  this  point,  because  the 
same  reactions  procured  by  Dr.  Aikin  were  also 
procured  by  him,  and  were  considered  by  him  to 
be  proof  sufficiently  positive  of  the  presence  of 
antimony. 

The  testimony  of  the  chemical  experts  summoned 
by  the  defence  was  so  voluminous  that  it  is  impos- 
sible to  do  more  than  state  its  general  character 
and  bearing.  Their  first,  and  perhaps  their  best, 
witness  in  this  portion  of  their  case  was  Professor 
R.  S.  McCulloch.  In  his  opinion  the  tests  used  by 
Professor  Aikin  to  establish  the  presence  of  anti- 
mony were  insufficient,  and  the  analysis  made  by 
that  gentleman  was  radically  defective.  The  re- 
sults  obtained  by  him   estabhshed   a  probability, 


MRS.   WHAKTON.  299 

but  by  no  means  a  certainty,  of  the  presence  of 
antimony.  A  large  number  of  other  tests  could 
and  ought  to  have  been  tried.  The  metal  anti- 
mony could  have  been  easily  obtained,  and  no  test 
which  failed  to  produce  it  could  be  regarded  as 
at  all  conclusive.  Even  after  the  metal  was  ob- 
tained it  should  be  carefully  tested.  Especially 
in  examining  the  contents  of  a  stomach  in  a  search 
for  metal,  where  organic,  animal,  or  vegetable 
matter  is  present,  it  has  been  held  for  many 
years  that  the  reactions  described  by  Professor 
Aikin  may  prove  entirely  fallacious.  This  wit- 
ness further  stated  that  he  had  made  experiments 
with  reference  to  this  particular  case.  He  had 
tried  the  reaction  of  sulphuretted  hydrogen  on 
chloral,  and  had  procured  from  it  a  precipitate 
which  might  readily  be  mistaken  by  its  color  for 
one  of  sulphide  of  antimony.  A  similar  experiment 
with  yellow  jasmine  likewise  gave  a  precipitate 
easily  to  be  mistaken  by  its  color  for  a  precipitate 
of  antimony.  The  same  result  was  produced  with 
a  combination  of  chloral  and  yellow  jasmine.  The 
witness  then  prepared  a  mixture  containing  the 
white  of  an  egg,  whey  from  milk  that  had  soured, 
beef  tea,  a  drop  of  lactic  acid,  a  drop  of  hydro- 
chloric acid,  and  a  little  pepsin.  The  object  was 
to  reproduce  as  nearly  as  possible  the  probable 
contents  of  General  Ketchum's  stomach.  Trying 
the  same  experiments  with  this  material,  a  red 
precipitate  was  obtained,  closely  resembling  that 
which  antimony  would  give.  Another  important 
experiment  tried  by  this  gentleman  gave  the  fol- 


800  MRS.   WHARTON. 

lowing  results :  The  red  precipitate  thrown  down 
by  sulphuretted  hydrogen  in  tincture  of  yellow 
jasmine,  dissolves  in  hydrochloric  acid,  as  that 
from  antimony  does.  When  this  solution  in  hydro- 
chloric acid  is  dropped  into  water,  it  also  gives  a 
"white  cloud,  just  as  the  same  preparation  of  anti- 
mony does.  Tliat  white  cloud  is  soluble  in  an 
excess  of  hydrochloric  acid,  as  is  also  the  same 
preparation  of  antimony.  This  solution,  with  sul- 
phuretted hydrogen,  again  gives  a  precipitate  which 
might  be  mistaken  for  one  of  antimony.  The  re- 
semblance of  the  reactions,  the  witness  said,  was 
truly  remarkable,  and  had  very  much  astonished 
him.  The  same  fault  which  was  to  be  found  with 
Dr.  Aikin's  examination  of  the  contents  of  the 
stomach  was  also  to  be  found  with  his  analysis  of 
the  sediment  in  the  tumbler.  Here  also  he  should 
have  found  the  metal  antimony. 

Professor  McCulloch  was  likewise  dissatisfied 
with  the  sufficiency  of  Professor  Tonry's  tests. 
Professor  Tonry  had  also  fallen  into  the  fatal  error 
of  not  producing  and  proving  the  metal.  Suppos- 
ing certain  spots,  found  by  him  and  mentioned  in 
his  testimony,  to  have  been  antimony,  they  were 
so  minute  that  their  presence  might  have  arisen 
from  impurities  in  some  of  the  chemical  agents 
used.  For  example,  hydrochloric  acid  is  liable  to 
contain  impurities ;  it  often  contains  arsenic,  and 
may  contain  antimony.  The  tests  of  the  purity  of 
his  sulphuric  acid,  which  Professor  Tonry  stated 
that  he  had  applied,  were  insufficient  to  establish 
the  fact  of  that  purity. 


MRS.   WHAETON.  301 

Some  of  the  precipitates  produced  by  the  experi- 
ments of  this  witness  in  the  court-room,  in  illustra- 
tion of  his  statements,  were  kept  until  the  following 
day,  when  they  were  found  to  have  become  dark, 
and  no  longer  to  resemble  antimonial  precipitates. 
The  witness  ascribed  this  change  to  some  alteration 
in  the  organic  substance.  Upon  cross-examination 
the  witness  acknowledged  that,  if  a  tablespoonful 
of  brandy  or  whiskey,  white  sugar,  and  fresh  milk 
had  been  the  only  contents  of  the  tumbler,  he  did 
not  think  that  the  sediment  could  have  yielded  the 
results  obtained  by  Professor  Aikin.  These  results 
certainlj^  created  the  basis  for  a  suspicion  that  an- 
timony was  present. 

Dr.  Genth,  an  analytical  chemist  from  Philadel- 
phia, gave  substantially  the  same  testimony  as  that 
of  Professor  McCulloch.  Dr.  John  J.  Reese,  a  tox- 
icologist,  followed,  with  corroborating  testimony. 
Professor  Harry  C.  White,  of  Annapolis,  made  the 
like  statements,  and  had  tried  similar  experiments 
with  jasmine  and  chloral,  obtaining  like  results. 

Dr.  Reese  thought,  from  the  symptoms,  that  Gen- 
eral Ketchum  might  have  died  from  cerebro-spinal 
meningitis.  Dr.  Edward  Warren  was  of  opinion 
that  he  did  die  of  cerebro-spinal  meningitis.  He 
based  his  opinion  on  the  symptoms,  and  found  no 
cause  for  changing  it  in  the  revelations  of  the  anal- 
yses. This  witness  had  seen  two  cases  of  antimo- 
nial poisoning.  He  expressed  a  decided  opinion  that 
General  Ketchum's  death  was  not  due  to  this  cause. 
Going  through  the  several  days,  and  showing  rea- 
sons why  he  could  not  have  died  from  this  poison 


302  MRS.   WHARTON. 

if  administered  on  Monday  or  Tuesday,  because 
all  the  symptoms  of  such  poisoning  were  absent 
on  those  days;  he  concluded  by  saying  that  the  de- 
ceased could  not  have  been  poisoned  by  a  dose  of 
tartar-emetic  swallowed  on  Wednesday;  for  when 
he  was  lying  in  a  semi-unconscious  condition,  and 
the  physician's  hand  was  merely  placed  upon  him, 
a  shiver  passed  over  his  frame,  demonstrating  the 
existence  at  that  time  of  cutaneous  hypersesthesia, 
a  symptom' never  observed  in  any  case  of  antimo- 
nial  poisoning,  but  a  characteristic  phenomenon  in 
cases  of  meningial  fever.  The  additional  circum- 
stances, that  he  tried  to  get  out  of  bed,  slapped  the 
shoulder  of  an  attendant,  and  applied  his  hands  at 
will  to  various  portions  of  his  body,  thus  showing 
the  existence  of  normal  contractile  power  in  such 
of  the  voluntary  muscles  as  were  not  rigid  or  con- 
vulsed, and  the  ability  to  employ  it  at  discretion, 
form  another  stable  link  in  the  claim  of  proof,  which 
associates  the  morbid  condition  then  developed  with 
the  operation  of  a  natural  cause,  and  a  wide  hiatus 
in  the  connection  which  is  sought  to  be  established 
between  it  and  the  action  of  this  or  any  other  poi- 
sonous agent. 

It  was  also  testified  that  opisthotonos  and  pleu- 
rosthotonos,  signifying  respectively  a  muscular 
bending  of  the  body  backwards  and  sideways,  were 
noticeable  in  General  Ketchum's  case,  and  were 
symptoms  of  cerebro-spinal  meningitis. 

Professor  Harvey  L.  Byrd  testified  that,  from  the 
recital  of  symptoms,  he  thought  General  Ketchum 
died  from  natural  causes.     He  was  unable  to  iden- 


MRS.   WHARTON.  808 

tify  the  disease,  though  many  of  the  symptoms  re- 
sembled cerebro-spinal  meningitis. 

Dr.  Goolrick,  judging  from  the  symptoms  and 
post-mortem  examination,  _  thought  the  general 
might  have  died  from  natural  causes. 

Dr.  John  R.  McClurg  had  no  hesitation  in  say- 
ing that  he  thought  the  death  resulted  from  natural 
causes,  and  he  inclined  to  attribute  it  to  cerebro- 
spinal meningitis.  This  gentleman  had  seen  many 
cases  of  poisoning  by  tartar-emetic,  though  none  of 
them  had  been  fatal.  But  this  witness  said  that  if 
antimon}^  had  been  found  in  the  stomach,  liver,  and 
kidneys  of  the  deceased,  he  should  be  unable  to 
say  whether  death  resulted  from  antimonial  poison- 
ing, cerebro-spinal  meningitis,  or  apoplexy  from 
congestion. 

Dr.  Wm.  H.  Baltzell  was  inclined  to  attribute 
the  death  to  cerebro-spinal  meningitis.  The  opera- 
tion of  tartar-emetic  would  have  been  too  rapid  to 
accord  with  the  progress  of  General  Ketchum's 
disease. 

Dr.  Josiah  Simpson  attributed  the  death  to  nat- 
ural causes. 

Dr.  Abram  Claude,  from  the  symptoms  and  the 
post-mortem  examination,  thought  the  death  due 
to  natural  causes,  and  thought  the  disease  resembled 
cerebro-spinal  meningitis. 

In  rebuttal,  the  state  attorney  called  some  half-- 
dozen  medical  gentlemen,  who  expressed  the  opinion 
that  General  Ketchura  died  from  non-natural  causes, 
and,  of  course,  not  from  cerebro-spinal  meningitis. 
Dr.  Aikin  was  also  recalled.     He  had  made  further 


304  MES.    WHARTON. 

experiments,  and  wished  to  state  the  result  of  them. 
After  an  eager  argument  by  counsel,  the  Court  ad- 
mitted his  testimony.  It  was  not  extremely  valu- 
able. He  simply  said  he  had  tried  the  experiments 
described  by  Professor  McCulloch,  and  had  ob- 
tained results  of  a  different  character  from  those 
described  by  that  gentleman.  He  was  sure  he  had 
been  correct  in  his  previous  statements,  and  that 
the  mistakes  concerning  the  character  of  the  pre- 
cipitates, regarded  by  the  experts  for  the  defence 
as  very  easily  to  be  made,  were  not  such  as  any 
intelligent  man  could  make,  and  of  course  had  not 
been  made  by  himself. 

Cerebro-spinal  meningitis  appeared  by  the  testi- 
mony of  nearly  all  the  witnesses  to  be  a  rather 
obscure  disease.  In  older  days  it  was  known  as 
"Death  by  the  grace  of  God,"  but  in  time  this 
name  gave  place  to  the  present  learned  appellation. 
It  varied  a  good  deal  in  its  symptoms  in  different 
cases.  An  effort  was  made  to  show  that  it  was 
epidemic  in  Baltimore  about  the  time  of  General 
Ketchum's  death.  Though  in  this  attempt  the  de- 
fence was  only  partially  successful,  yet  they  showed 
that  it  was  at  least  a  disease  of  not  unfrequent  oc- 
currence in  that  city. 

Many  of  the  physicians  summoned  b}'-  the  defence 
were  of  opinion  that  cerebro-spinal  meningitis  in  its 
fulminant  form,  as  they  were  pleased  to  call  it,  — 
signifying  by  this  alarming  adjective  only  the  qual- 
ities of  violence  and  rapidity  in  the  development 
and  progress  of  the  disease,  —  would  leave  behind 
no  lesion  of  any  of  the  organs  which  would  be  dis- 


MRS.    WHARTON.  805 

coverable  in  a  post-mortem  examination.  Thus 
they  explained  away  the  inferences  drawn  from  the 
soundness  of  all  the  vital  parts  of  the  general's 
body.  Whereas  some  of  them  testified  that  poison- 
ing by  antimony  should  have  left  traces  upon  some 
of  the  organs. 

Throughout  the  trial  the  newspaper  reporters, 
after  the  fashion  of  their  tribe,  kept  their  lynx-eyed 
watch  upon  the  prisoner,  and  duly  described,  for 
the  benefit  of  the  public,  every  movement,  every 
expression,  so  far  as  they  could  penetrate  the  con- 
cealment of  her  veil,  and  every  article  of  dress  ; 
even  commenting  on  the  fit  of  her  kid  gloves.  By 
their  account,  which  may  be  trusted  as  accurate, 
she  exhibited  the  most  rigid  and  unvarying  self- 
control.  She  sat  inscrutable  and  impenetrable 
from  the  beginning  of  the  long  trial  on  Dec.  4, 
1871,  to  its  close  on  Jan.  24,  1872.  When  all 
others  were  moved  she  alone  was  immovable. 
When  others  grew  excited  at  some  significant 
piece  of  evidence,  she  remained  passive.  None  of 
the  varying  phases  of  the  criminal  process,  now 
tending  in  her  favor  and  now  against  her,  stirred 
any  apparent  emotion.  It  would  be  cruel  to  judge 
of  a  person's  guilt  or  innocence  by  such  signs  as 
these.  No  one  of  us  knows  how  an  unfounded 
charge  and  a  trial  for  life  and  fame  might  affect  his 
character  and  bearing.  It  might  strike  one  to  a 
statue.  But  it  was  impossible  not  to  reflect  that 
in  this  wonderful  unbroken  composure  of  Mrs. 
Wharton,  there  was  the  token  of  that  mental  force 
and  power,  which,  could  conscience  once  be  mas- 

20 


306  MRS.   WHARTON. 

tered,  would  have  enabled  her  to  contemplate  with 
equanimity  and  to  perform  without  flinching,  crimes 
even  so  atrocious  as  those  which  she  was  accused 
of,  and  for  which  she  could  undergo  so  impassively 
her  dubious  trial. 

The  jury  brought  in  a  verdict  of  "  not  guilty." 
Yet  the  result  of  the  trial,  if  the  prisoner  were 
really  innocent,  must  have  been  far  from  satisfac- 
tory to  her.  It  was  obvious  that  the  verdict, 
known  to  the  Scotch  criminal  law,  '■'•not  proven.,^'' 
would  have  more  accurately  expressed  the  result 
of  the  proceedings.  Mrs.  Wharton's  counsel  had 
not  established  her  innocence.  Indeed,  they  made 
no  very  strenuous  effort  to  do  so.  They  were  con- 
tent to  emancipate  their  client  from  the  clutches  of 
the  law.  Suspicion  was  not  silenced.  None  of  the 
facts  which  induced  suspicion  were  encountered 
and  overthrown.  In  respect  of  the  money  trans- 
actions, neither  side  absolutely  proved  any  thing, 
but  the  prosecution  established  a  strong  case,  and 
the  defence  presented  an  eminently  weak  one.  The 
defence  did  not  even  attempt  to  account  for  the 
absence  of  General  Ketchum's  waistcoat  immedi- 
ately after  his  death,  and  its  subsequent  reappear- 
ance. They  did  not  undertake  to  show  any  cause 
why  Mrs.  Wharton  should  have  applied  tartar- 
emetic  to  her  breast.  They  weakened  the  prob- 
abilities of  their  case  extremely  in  the  minds  of 
all  intelligent  men  by  the  futile  effort  to  show  that 
General  Ketchum  had  dosed  himself  with  laud- 
anum. Mrs.  Wharton's  reputation  would  have 
stood  better  with  the  world  at  large  this  day  if  her 


MRS.   WHARTON.  307 

counsel  had  not  shown  that  they  felt  obliged  to 
grasp  at  so  absurd  an  hypothesis  in  order  to  save 
her. 

She  probably  was  acquitted  because  the  testi- 
mony of  the  chemical  and  medical  experts,  espe- 
cially the  former,  called  by  the  government,  was  so 
unsatisfactory.  It  was  not  enough,  and  it  ought 
not  to  have  been  enough,  that  Dr.  Aikin  and  Dr. 
Tonry  had  satisfied  their  own  minds  by  producing 
a  very  high  degree  of  probability.  Their  failure 
was  a  warning  to  experts  in  all  future  time  to  rest 
content  with  no  amount  of  investigation  which 
leaves  any  known  test  untried.  Had  they  gone  on 
with  their  analysis  and  actually  produced  the  metal 
antimony  from  the  contents  of  the  stomach,  liver, 
and  kidneys  of  General  Ketchum,  Mrs.  Wharton 
might  at  this  time  have  been  under  sentence  of 
death.  It  is  impossible  not  to  speculate  on  the 
probability  that  the  extension  of  the  search  by 
further  tests  might  have  had  this  result.  It  is  im- 
possible to  be  blind  to  the  effects  upon  the  trial  of 
such  a  result  had  it  been  obtained.  It  must  be 
supposed  that  Mrs.  Wharton  owed  her  escape  to 
the  fact  that  the  chemical  experts  called  by  her 
counsel,  men  of  eminence  and  respectability,  were 
not  satisfied  beyond  the  possibility  of  a  reasonable 
doubt  that  antimony  had  been  found  in  the  vital 
organs  of  General  Ketchum.  If  the  government 
did  not  establish  this,  they  did  not  establish  their 
case.  Then  the  medical  experts  were  able  to  say 
that  the  deceased  apparently  died  from  some  natural 
cause,   probably    from    cerebro-spinal    meningitis. 


808  MRS.   WHARTON. 

They  could  not  say  he  died  from  the  administration 
of  poison,  when  no  poison  had  been  proved  to  be 
present  in  his  system.  They,  or  at-  least  most  of 
them,  considered  the  symptoms  and  the  absence  of 
any  proof,  satisfactory  to  their  minds,  of  the  pres- 
ence of  poison,  and  they  were  obliged  to  attribute 
death  to  that  known  disease  whose  symptoms,  ob- 
scure and  variable  at  best,  most  closely  resembled 
the  developments  of  the  general's  illness.  What 
their  expression  of  opinion  might  have  been  had 
they  been  satisfied  that  a  deadly  poison  was  lurking 
in  vital  organs  in  the  body,  it  is  impossible  to  say. 

It  was  thought  by  the  members  of  the  legal  pro- 
fession that  much  valuable  light  upon  the  subject 
of  expert  testimony  might  be  obtained  from  this 
case.  We  cannot  see  that  it  was  peculiarly  useful 
in  this  way.  It  was  a  simple  instance  of  disagree- 
ment between  experts  upon  a  difficult  and  obscure 
subject,  wherein  the  witnesses  who  were  obliged  to 
sustain  the  burden  of  proof  did  not  succeed  in 
doing  so.  Had  Professors  Tonry  and  Aikin  gone  a 
little  further  before  desisting  from  their  analyses, 
it  is  possible  that  there  might  have  been  very  little 
disagreement  of  experts.  Either  these  learned 
gentlemen  would  have  been  satisfied,  by  the  failure 
of  some  sure  test,  of  the  non-existence  of  antimony 
in  the  material  furnished  to  them  for  examination, 
or  they  would  have  proved  its  existence  so  ab- 
solutely that  no  intelligent  chemist  or  physician 
could  have  doubted  it.  Either  alternative  would 
probably  have  determined  these  criminal  proceed- 
ings.    The  need  for  the  very  highest  conceivable 


MES.   "WHAETON".  309 

degree  of  thoroughness  in  his  preparation  to  testify, 
both  out  of  regard  to  the  value  of  his  testimony 
and  to  his  own  reputation,  is  the  lesson  which 
every  expert  witness  may  draw  from  the  cause. 
But  the  lawyers  have  little  to  learn  from  it  as  to 
the  intrinsic  character  or  value  of  such  evidence. 

Note.  —  At  the  time  of  this  trial  another  indictment  was  also 
pending  against  Mrs.  Wharton,  charging  her  with  an  attempt  to 
kill  Mr.  Van  Ness  by  administering  poison  to  him.  But  some 
months  later  the  counsel  for  the  State  entered  a  nolle  prosequi,  for 
what  reasons  it  was  never  generally  or  distinctly  known. 


[^Law  Review,  January,   1869.] 
THE   METEOR. 


On  the  23d  January,  1866,  the  steamship 
"Meteor,"  lying  at  her  wharf  in  New  York,  was 
seized  by  the  United  States  Marshal,  by  virtue  of  a 
warrant  filed  by  the  United  States  District  Attor- 
ney, in  the  District  Court  for  the  Southern  District 
of  New  York.  The  libel  charged  that  the  "  Meteor  " 
had,  within  the  jurisdiction  of  the  Court,  been  fur- 
nished and  fitted  out,  or  attempted  to  be  fitted  out, 
by  persons  to  the  District  Attorney  unknown,  with 
the  knowledge  and  intent  that  she  should  be  em- 
ployed in  the  service  of  the  government  of  Chili, 
to  cruise  and  commit  hostilities  against  the  subjects 
and  property  of  the  government  of  Spain  (with 
which  power  we  were  then  at  peace),  contrary  to 
the  third  section  of  the  Act  of  Congress  approved, 
April  20,  1818,  commonly  called  the  Neutrality 
Act. 

On  the  14th  March  following,  Mr.  Evarts,  of 
counsel  for  the  owners,  moved  to  have  the  vessel 
appraised  and  released  to  them  on  bond,  according 
to  the  custom  in  causes  in  admiralty  on  the  instance 
side  of  the  Court.  He  supported  his  motion  on  the 
ground  that  it  was  matter  of  ordinary  right  in  such 


THE   METEOR.  311 

causes.  He  adduced  the  analogy  in  the  practice 
under  the  Slave  Trade  Act,  and  the  Piracy  Act ; 
and  urged  that  a  privilege  never  withheld  from  the 
nefarious  traffickers  in  human  beings  ought  not, 
certainly,  to  be  refused  to  men  of  the  well-known 
high  standing  and  integrity  of  the  owners  of  this 
vessel,  ■  constructed,  as  she  had  been,  upon  the 
most  patriotic  motives.  The  District  Attorney,  in 
reply,  argued  that  the  Neutrality  Act  was  a  com- 
plete whole  in  itself,  which  in  some  cases  directly 
authorized  bonding,  and  in  others  by  a  necessary 
implication  withheld  the  privilege.  He  suggested 
that  to  bond  the  vessel  was  simply  to  set  her  free 
at  once  to  depart  upon  her  illegal  cruise.  He  fur- 
ther insisted  that  even  if  the  Court  had  power  to 
bond  the  ship,  it  was,  at  least,  a  matter  of  judicial 
discretion ;  and  as  a  consideration,  which  in  this 
view  would  be  "  fatal  to  the  motion,"  he  read  and 
"  made  part  of  his  argument "  certain  letters  from 
the  state  department,  embodying  "  instructions " 
to  himself.  Probably  no  error  can  be  committed  in 
construing  the  contents  of  these  letters  as  the  Dis- 
trict Attorney  himself  construed  them  ;  that  is  to 
say,  as  imperative  exhortations  to  use  all  the  ma- 
chinery of  the  law  for  the  purpose  of  securing  the 
forfeiture  of  this  vessel.  In  the  same  connection, 
he  argued  strenuously,  as  a  fact  Avhich  "  ought  to 
liave  some  bearing  on  the  question  now  before  the 
Court,"  that  an  application  had  been  made  to  the 
state  department  to  release  the  vessel,  and  had 
been  refused.  This  matter  and  the  "  instructions  " 
of  the  letter  were  dwelt  upon  at  ^length  and  em- 


312  THE  METEOR. 

phatically ;  and  thus,  at  this  early  stage  in  the  pro- 
ceedings, the  government  counsel,  with  a  faint 
deprecation,  took  the  ground,  which  they  after- 
ward deliberately  and  distinctly  assumed,  that  the 
whole  matter  was  an  affair  of  state,  rather  than  a 
question  of  laAv,  and  that  the  judge  was,  for  the 
purposes  of  this  cause,  not  so  much  a  judicial 
magistrate  as  a  political  subaltern. 

Mr.  Evarts  replied.  He  said  that  the  Court  had 
no  precautionary  power  which  could  be  exerted  to 
prevent  any  further  offence  by  the  vessel ;  that 
such  power,  in  an  ample  degree,  was  lodged  with 
the  executive.  That  the  bonding  was  matter  of 
obligation,  not  of  discretion ;  but,  if  it  should  be 
held  matter  of  discretion,  he  stated  facts  which  he 
thought  should  induce  the  Court  to  grant  his  mo- 
tion. In  reference  to  the  application  stated  to  have 
been  made  to  the  state  department,  he  explained 
that  it  was  only  an  application  for  the  entire  dis- 
continuance of  the  suit  and  absolute  release  of  the 
vessel,  grounded  on  the  belief  of  the  owners  that 
the  government,  "  in  plain  view  of  the  rights  and 
purposes  of  the  owners,  could  not  seriously  intend 
to  make  it  a  matter  of  judicial  inquiry ;"  that  the 
request  was  properly  preferred  to .  the  executive, 
within  whose  province  lay  the  duty  of  delibei*ation 
and  the  power  of  control  as  to  whether  the  suit 
should  go  on  or  be  discontinued ;  that  the  owners 
had  never  "  asked  the  government,  by  any  intima- 
tion of  its  wishes,  to  affect  the  Court's  direction 
and  conduct  of  questions  arising  in  the  prosecu- 
tion ; "    that  if.  the  prosecuting  attorneys  insisted 


THE   METEOR.  818 

upon  having  the  Secretary  of  State  and  the  Presi- 
dent "  heard  on  questions  touching  the  due  ad- 
ministration of  justice,  except  by  argument  and  in 
methods  for  which  the  law  provides,"  then  they 
"  introduced  an  impropriety  into  the  administration 
of  justice,"  not  justified  by  the  Secretary's  letter, 
and  which  the  "judiciary  of  the  United  States 
would  not  submit  to  tolerate  for  a  single  moment." 
On  the  twenty-third  of  March  the  opinion  of  the 
Court  was  rendered,  refusing  the  motion.  The 
position  taken  was,  that  the  statute  itself  was  con- 
clusive to  the  effect  that  "  the  vessel,  while  held 
under  seizure  by  process  in  favor  of  the  United 
States  for  the  violation  of  that  statute,  cannot  be 
discharged  on  bail  by  order  of  a  judge  of  the 
United  States  under  the  authorit}^  of  the  common 
rules  and  practice  of  this  Court."  .  .  .  That  the 
"  clear  purport  and  intent "  of  the  statute  was  that 
"  the  vessel  [should]  herself  be  detained,  so  that 
the  forfeiture,  which  is  the  penalty,  &c.,  may  be 
enforced  against  her  specifically  in  case  of  condem- 
nation." The  Court  thus  decided  that  it  had  not 
the  power  to  bond  the  vessel  at  this  time  when  she 
had  in  her  favor  the  legal  presumption  of  innocence. 
Soon  afterward  the  trial  upon  the  merits  was  had, 
and  the  Court  pronounced  a  decree  of  condemna- 
tion. Thereupon  the  vessel  became  tainted  with 
guilt,  and  the  necessity  of  enforcing  the  forfeiture 
"•  against  her  specifically  "  seemed  then  to  be  in  a 
fair  way  to  be  executed.  But  just  at  this  juncture 
the  judge  reversed  his  former  decision,  and  the  de- 
cree of  condemnation  was  promptly  followed  by  an 


814  THE  METEOR . 

order  that  the  "  Meteor  "  should  be  appraised  and 
bonded,  if  her  owners  so  wished.  It  was  accord- 
ingly done,  and  she  was  released.  No  opinion  was 
delivered,  either  at  the  time  or  afterward  ;  no  rea- 
sons or  explanation  were  vouchsafed  for  this  aston- 
ishing contradictory  action.  The  record  simply 
remains  thus :  On  the  twenty-third  of  March  the 
Court  had  no  legal  power  to  bond  the  vessel  which 
was  then  presumably  innocent;  on  the  twentieth 
of  July,  it  bonded  her  after  she  had  been  adjudged 
guilty.  We  of  the  outside  world  are  remitted  to 
our  own  cleverness  to  account  for  this  strange  series 
of  incongruous  acts.  No  new  law,  no  new  legis- 
lation, occurring  between  March  23  and  July  20, 
aids  us. 

To  take  up  again  the  thread  of  the  history  of  the 
case,  we  will  go  back  to  the  twenty-eighth  of  March. 
On  this  day  the  trial  of  the  case  began.  The  vessel 
was  then  still  in  the  custody  of  the  United  States 
Marshal.  The  substance  of  the  evidence  adduced 
by  the  government  was  briefly  as  follows :  The 
"Meteor"  was  a  swift  sea-going  steamship;  she 
was  built  by  a  number  of  public-spirited  citizens, 
with  the  intention  of  offering  her  to  the  United 
States  Government  for  the  purpose  of  pursuing 
and  destroying  the  "Alabama;"  to  this  end  she 
was  capable  of  carrying  a  moderate  armament ;  but 
her  chief  merit  lay  in  her  speed,  to  which  every 
other  consideration  had  been  made  subordinate. 
Before  she  was  finished,  the  need  for  such  vessels 
had  ceased.  She  had  since  been  used  by  govern- 
ment as  a  transport  ship  for  troops,  and  afterward 


THE  METEOR.  316 

had  been  employed  as  a  freighting  vessel,  in  the 
merchant  service,  between  home  ports.  Originally 
two  Parrott  guns  had  been  placed  on  board  her, 
which  had  been  subsequently  removed;  and,  be- 
yond this,  she  had  received  no  warlike  equipment 
whatsoever.  She  had  on  board  750  tons  of  coal, 
being  about  twelve  tons  per  day  for  the  shortest 
voyage  to  Panama,  and  provisions  for  six  months, 
a  portion  of  which  were  marked  "reserved  stores." 
She  was  for  sale  for  several  months.  There  was 
war  between  Spain  and  Chih,  pending  which  a  cer- 
tain accredited  agent  of  Chili,  in  New  York,  wished 
to  buy  stanch  sea-going  steamers;  the  "Meteor," 
among  others,  attracted  his  attention  (though 
through  no  act  of  her  owners),  and  suited  his  pur- 
pose. Three  "  adventurers,"  of  that  nondescript 
hand-to-mouth  occupation  which  furnishes  a  mys- 
terious livelihood  to  so  many  inhabitants  of  large 
cities,  sought  to  get  a  handsome  commission  by 
bringing  about  a  sale  of  the  "Meteor"  to  this 
Chilian  agent.  One  of  these  men  was  an  army  and 
navy  claim  agent,  interested  in  petroleum  and  min- 
ing stocks;  the  other  sometimes  "speculated  in  oil 
stocks,"  and  had  been  a  "  bounty  broker."  For 
want  of  read}'^  money,  their  efforts  ended  only  in 
egregious  failure,  as  the}^  themselves  very  freely 
acknowledged.  The  owners,  the  Messrs.  Forbes, 
were  ready  and  wilUng  to  sell  the  vessel  to  this 
Chilian  agent ;  but  she  was  to  be  sold  and  deliv- 
ered in  precisely  the  condition  in  which  she  was 
then  lying  at  the  wharf,  for  the  full  price  in  cash 
down.     This  money  could  not  be  thus  raised.  The 


316  THE  METEOR. 

whole  plan,  for  this  reason,  fell  through,  and  the 
negotiations  conclusively  ceased.  The  vessel,  with 
the  coal  and  provisions  before  named,  was  cleared 
or  about  to  clear  for  Panama,  when  she  was  seized 
under  the  libel.  The  informer  was  one  of  the  three 
disappointed  adventurers.  The  evidence  was  ex- 
plicit to  the  effect  that  in  the  negotiations  with  the 
Messrs.  Forbes,  nothing  was  for  a  moment  contem- 
plated, save  an  outright  sale  of  the  vessel  as  she 
lay,  for  cash  down  in  full.  It  was  further  explicit 
and  consistent,  to  the  effect  that  the  negotiations 
concerning  the  sale  were  understood  by  all  parties 
to  have  been  finally  and  totally  abandoned,  with- 
out having  accomplished  any  thing,  a  long  time 
before  the  seizure.  The  only  connection  between 
the  three  middle-men.  or  "  runners,"  as  they  were 
called  on  the  trial,  and  the  owners  of  the  vessel, 
consisted  in  two  or  three  visits  of  inquiry  made  by 
the  middle-men,  to  a  shipbroker,  who  communi- 
cated the  offers  made  to  him  for  the  ship  to  the 
New  York  agent  of  the  owners,  and  who  received 
authority  from  him  to  sell  her  upon  the  terms  above 
stated. 

To  breathe  into  these  historical  facts,  in  them- 
selves apparently  innocent,  a  guilty  life,  the  Dis- 
trict Attorney  and  his  associate  counsel  relied  upon 
testimony  which  they  were  permitted  to  introduce 
contrary  to  the  strict  rules  of  law ;  because,  as  they 
frankly  stated,  unless  this  permission  was  accorded 
to  them,  they  should  be  quite  unable  to  make  out 
their  case.  The  evidence  which  was  admitted 
through  the  door  of  this  cogent  necessity  was  as 


THE  METEOR.  317 

follows:  One  witness  testified  that  a  man  who 
looked  very  like  a  stevedore,  but  who  might, 
nevertheless,  have  been  some  other  species  of 
laborer,  told  him  that  the  ship  was  going  to  Chili. 
The  same  witness  was  allowed  to  add  that  "  ste- 
vedores were  apt  to  know ''  the  destination  of  ves- 
sels. One  Conkling,  the  man  who  had  stated 
himself  to  be  an  "  oil  speculator "  and  "  bounty 
broker,"  was  even  permitted  to  state  that  one  man 
had  said  to  another  man,  that  "  he  believed "  the 
arrangement  for  the  sale  of  the  vessel  had  been 
completed  by  a  third  individual.  It  was  further 
shown,  that  when  the  vessel  was  seized,  with  her 
steam  up,  Captain  R.  B.  Forbes  was  on  board ; 
that  he  said  he  was  sorry  to  lose  his  trip  down  the 
Narrows ;  called  for  his  carpet  bag,  received  from 
the  errand  boy  a  small  black  hand-bag,  and  went 
ashore  ;  that  afterward,  as  he  was  crossing  on  the 
ferry-boat,  he  encountered  a  seafaring  man.  This 
man  was  j)laced  on  the  stand,  and  stated  substan- 
tially, that  when  he  met  Mr.  Forbes,  he  "  wanted 
to  talk ; "  that  he  had  himself  been  actively  urging 
some  of  the  third  parties  to  put  him  in  command 
of  the  ship,  if  they  should  succeed  in  buying  her, 
and  that  he  was  disappointed  at  the  non-success  of 
his  demands.  In  other  words,  this  "  captain  "  was 
an  American  citizen,  who  had  been  disappointed 
in  the  laudable  design  of  becoming  a  Chilian  pri- 
vateersman.  In  a  loud  tone  the  "  captain  "  said 
to  Mr.  Forbes,  that  he  thought  the  "  Meteor"  was 
going  to  ChiU ;  Mr.  Forbes  said  she  was  bound  or 
cleared  for  Panama ;  the  other  responded,  that  if 


818  THE  METEOR. 

she  had  gone  to  Chili,  he  had  supposed  that  he 
should  have  gone  in  command  of  her.  The  folly 
of  this  speech,  which,  however  harmless  for  others, 
might  have  been  damaging  to  the  speaker,  was  re- 
buked by  Mr.  Forbes,  with  the  admonition  that  the 
captain  had  better  not  make  such  remarks  in  so 
high  a  tone.  Further,  it  was  stated  that  Captain 
Kemble,  in  command  of  the  "  Meteor  "  when  she 
was  seized,  and  previously,  had  been  heard  to  say 
that  if  she  was  sold,  he  should  take  her  out  to  Pan- 
ama and  there  deliver  her  over  to  a  "  fighting  cap- 
tain." Besides  this,  the  tale  of  the  fiasco  of  the 
three  disappointed  adventurers  was  narrated  in 
full.  In  the  course  of  the  narration,  hearsay  tes- 
timony was  introduced  by  wholesale,  when  the  very 
witnesses  who  could  have  given  it  at  first-hand 
were  sitting  in  the  court-room.  Neither  was  any 
link  established  between  this  story,  which  was  a 
thing  of  the  past,  that  had  found  its  death  and 
burial  in  empty  words  and  nothing  more,  and  the 
subsequent  condition  and  histoiy  of  the  vessel.  On 
this  ground,  the  defendants'  counsel  took  exception 
to  the  admission  of  that  part  even,  which  was  not 
hearsay ;  objecting  that  it  related  wholly  to  a  sep- 
arate, distinct,  and  completed  transaction,  having 
no  bearing  upon  or  connection  with  any  fact  that 
could  be  proved,  or  had  been  offered,  or  attempted 
to  be  proved,  against  the  vessel  under  the  libel. 

Upon  this  evidence  the  government  rested  its 
case.  Mr.  Evarts  then  rose  and  stated  that  it  was 
not  his  intention  to  introduce  any  testimony,  inas- 
much as  he  was  fully  satisfied  with  that  given  by 


THE  METEOK.  819 

the  witnesses  called  by  the  government.  We  do 
not  propose  to  dwell  upon  the  arguments  at  any 
great  length.  The  ground  assumed  by  the  govern- 
ment counsel  was  double  :  they  urged  that,  under 
the  law  as  it  stood,  the  facts  warranted  a  decree 
of  forfeiture.  The  strongest  point  which  they 
made  in  this  branch  of  their  argument  ought,  per- 
haps, to  be  briefly  suggested,  for  it  was  so  subtle 
and  ingenious,  though  withal  so  weighty  and  preg- 
nant, that  it  might  escape  the  attention  of  the 
reader,  and  fail  to  meet  that  consideration  which 
it  deserves,  and  which  Judge  Betts  awarded  to  it. 
As  oaks  from  acorns  grow,  so  this  theory  in  all  its 
completeness  sprouted  from  the  little  piratical- 
hued  carpet-bag  of  contents  unknown,  or  at  least 
unproved.  It  was  suggested  that  this  bag  con- 
tained the  muniments  of  title  of  the  ship ;  that 
Mr.  Forbes  was  going  with  her  outside  of  Sandy 
Hook  ;  that  there  he  was  going  to  make  formal 
delivery  of  her,  with  all  the  legal  documents,  to 
certain  agents  of  the  Chilian  Government,  who 
were  to  turn  up  from  somewhere  and  be  outside 
Sandy  Hook ;  that  then  Mr.  Forbes  would  return, 
and  from  some  source  not  known,  or  at  least  not 
named  by  the  government,  an  armament  would  be 
put  on  board  the  vessel ;  that  she  would  then 
hoist  the  Chilian  flag  and  begin  her  career  of  de- 
struction. The  whole  story  had  the  incontrover- 
tible force  of  being  a  physical  possibility.  If  true, 
it  would  certainly  have  plunged  the  owners  deep 
into  a  guilty  collusion  with  a  belligerent  pur- 
chaser.     While  the  ingenuity  of  the    conception 


320  THE  METEOR. 

challenges  admiration,  the  question,  Avhether  or 
not  this  elaborate  plan,  with  all  its  minute  details, 
could  be  considered  as  reasonably  proved  to  the 
conviction  of  an  ordinary  mind,  by  the  appearance 
of  the  carpet  bag,  with  its  peculiar  traits  of  size 
and  color,  is  a  matter  on  which  each  of  our  read- 
ers must  make  up  his  own  mind.  Whatever  each 
one  may  decide,  none  will  fail  to  draw  the  obvious 
moral  against  carrying  small  black  hand-bags. 

The  second  ground  of  the  government  counsel 
was  purely  diplomatic.  In  this  branch  of  their 
argument  they  urged,  that,  if  the  law  had  been 
previously  against  them,  yet  the  necessities  of  the 
nation,  now  required  that  this  law  should  be 
changed.  Referring  directly  to  the  Anglo-rebel 
cruisers,  they  said  that  "  public  reasons  "  demanded 
"  an  interpretation "  of  the  act,  such  as  would 
make  their  case  good.  The  leading  case  on  the 
subject  is  that  of  the  "  Santissima  Trinidad."  The 
famous  ruling  of  Judge  Stor}",  in  his  opinion  de- 
livered in  that  case,  has  always  since  been  assumed 
by  judges,  lawyers,  and  publicists,  as  laying  down 
what  had  before  been  supposed  to  be  the  sound 
law  in  such  matters,  and  what  could  never,  after 
the  publication  of  that  opinion,  be  doubted.  This 
obstacle  it  was  thought  more  advisable  to  crush 
beneath  the  juggernaut  car  of -the  state  depart- 
ment, than  to  seek  to  undermine  or  circumvent  by 
legal  subtlety.  The  language  used  in  discussing 
it  was  as  follows :  — 

"  If  the  Supreme  Court  maintains  the  broad  dictum  of 
the  '  Santissima  Trinidad,'  after  the  late  positive  utterances 


THE  METEOR.  *  321 

of  the  department  of  state  on  that  very  point,  there  will 
be  a  conflict  of  opinion  between  the  executive  and  judicial 
departments  of  the  government,  on  a  matter  of  interna- 
tional law,  not  at  all  creditable  to  the  United  States,  which, 
since  its  peremjitory  demand  on  England  for  indemnity  for 
losses  occasioned  by  Anglo-rebel  cruisers,  cannot  well  change 
its  attitude." 

From  this  pregnant  text  issued  a  long,  urgent, 
elaborate,  politico-diplomatic  argument,  crammed 
full  of  the  various  phases  of  the  "Alabama"  dis- 
cussion, and  the  present  position  and  real  or  sup- 
posed needs  and  wishes  of  the  Secretary  concerning 
the  same. 

In  speaking  thus  of  these  diplomatic  features  of 
this  trial,  we  are  advancing  no  novel  views.  Se- 
vere animadversions  upon  them  have  been  reiter- 
ated again  and  again  in  other  quarters.  But  we 
do  not  wish  to  be  understood  as  undertaking  to 
utter  such  animadversions.  Neither  do  we  wish 
to  be  understood  as  making  any  unreasonable  im- 
putation against  the  motives  of  either  the  counsel 
or  the  judge.  There  can  be  no  question  that  they 
were  actuated  solely  by  a  regard  to  what  they 
supposed  to  be  the  public  good.  They  conceived 
that  they  had  the  best  authority  for  believing  that 
the  condemnation  of  the  vessel  would  be  a  national 
advantage,  that  it  could  almost  be  called  a  national 
necessity,  in  view  of  the  great  aid  which  this  con- 
demnation would  furnish  in  the  negotiations  with 
England.  Their  patriotic  anxiety  probably  blinded 
their  eyes  to  the  obvious  impropriety  of  introducing 
such  arguments  as  those  which  we  have  narrated 

21 


322  THE  METEOR. 

above,  into  legal  proceedings  which  could  properly 
deal  only  with  the  facts  in  evidence  and  the  law 
bearing  upon  them.  But  it  would  seem  to  be 
shown  by  the  history  of  this  case  that  the  question, 
whether  or  not  it  is  justifiable  to  seek  to  change 
the  established  interpretation  of  a  statute,  and  to 
overrule  decisions,  on  the  ground  of  public  utility, 
is  one  of  legal  ethics  on  which  honorable  members 
of  the  profession  are  able  to  differ. 

When  the  case  came  upon  appeal  before  Mr. 
Justice  Nelson,  it  was  for  the  first  time  stripped  of 
such  foreign  accompaniments,  and  was  tried  by 
that  eminent  judge  upon  the  sole  basis  of  its  legal 
merits.  It  is  at  this  stage  that  the  case  becomes 
very  valuable  to  the  profession.  Judge  Nelson  is 
probably  the  first  authority  in  the  land  upon  ques- 
tions of  marine  and  commercial  law.  His  rulings 
in  this  case  were  clear  and  decisive,  and  were  given 
without  any  expression  of  doubt.  It  was  a  piece 
of  great  good  fortune  that  the  cause  fell  within  his 
circuit. 

The  evidence  which  we  have  above  commented 
upon  as  hearsay,  and  a  part  of  which  we  have  nar- 
rated, had  been  admitted  by  Judge  Betts  on  the 
ground  that  it  was  the  testimony  of  some  of  sev- 
eral co-conspirators  against  others.  Judge  Nelson 
disposed  of  it  briefly  in  the  statement,  that  "  the 
principle  that  Judge  Betts  lays  down  is  all  right ; 
but  it  does  not  cover  the  evidence  that  was  al- 
lowed." Referring  to  the  evidence  of  Conkling, 
above  stated,  he  suggested,  with  a  certain  satirical 
humor,  that  "  if  you  want  to  prove  what  a  person 


THE  METEOR.  823 

has  said,  you  cannot  prove  it  by  one  man  saying 
that  another  said  he  had  said  it." 

On  the  matter  of  the  sufficiency  of  the  proof 
offered,  Judge  Nelson  stated  that  he  regarded  it 
as  absohitely  indispensable  for  the  government  to 
show  some  outfit  of  a  warlike  nature ;  some  fur- 
nishing which  had  prepared,  or  aided  in  preparing, 
the  vessel  for  belligerent  use.  Coal  and  provisions, 
to  the  amount  which  she  was  shown  to  have  had 
on  board,  he  did  not  consider  as  constituting  such 
a  furnishing  or  fitting  out  as  was  contemplated  by 
the  use  of  these  phrases  in  the  act.  If  a  simple  sale 
was  legal,  he  said,  and  that  it  was  so  was  admitted 
by  the  government  counsel,  then  fuel  and  pro- 
visions were  a  necessary  concomitant  to  enable  the 
vessel  to  leave  the  port.  The  naked  right  of  sale, 
unless  it  included  these  indispensable  privileges, 
was  an  utter  nullit3^  It  v/as  ex  necessitate  rei  that 
if  she  could  be  legally  sold,  she  could  be  legally 
delivered,  and  if  coal  and  provisions  were  requisite 
to  make  delivery  possible,  they  could  be  legally 
placed  on  board  her.  The  judge  said,  "  These 
owners  had  a  right  to  sell  the  ship,  and  the  gov- 
ernment must  make  out  that  she  has  been  fitted 
and  equipped  for  a  military  or  naval  expedition. 
...  It  must  be  an  arming  or  fitting  out  for  war 
purposes.  ...  I  do  not  see  any  evidence  of  that 
fitting  out.  ...  I  agree  that  if  the  agents  of  a 
hostile  government  should  make  a  contract  to  build 
a  ship  for  service  in  war,  then  suspicion  would 
commence  in  the  origin  of  the  contract,  and  very 
slight   circumstances  might  go  to  make  out   the 


324  THE   METEOE. 

purpose  and  the  intent.  But  this  vessel  was  built 
as  a  war  vessel  for  our  own  government.  [Being 
no  longer  required  for  that  use]  the  owners  had  a 
right  to  sell  her  ;  and  therefore,  having  that  right, 
the  mere  fact  that  stores  were  put  on  board  of 
her,  that  were  necessary  to  convey  and  transfer  her 
abroad  to  the  parties  to  whom  she  was  sold,  forms 
no  ground  of  suspicion  at  all ;  because  the  right  to 
sell  carried  with  it  the  right  to  put  on  board  these 
provisions  and  stores.  In  order  to  make  out  that 
there  was  a  hostile  purpose  intended,  as  an  expe- 
dition against  a  country  with  which  we  were  at 
peace,  in  violation  of  this  law,  you  must  show  there 
was  some  fitting  out,  in  the  military  or  naval  sense, 
with  intent  to  commit  this  hostile  act  against  a 
government  with  which  we  were  at  peace.  ...  I 
do  not  see  that  you  have  made  out  any  thing.  No 
munitions  of  war  on  board,  and  no  evidence  that 
any  were  to  be  put  on  board.  .  .  .  There  was 
nothing  illegal  in  the  furnishing  of  stores  and  sup- 
plies, —  nothing  in  the  act  to  forbid  it  You  must 
connect  this  with  the  military  or  naval  expedition, 
which  you  have  not  done.  .  .  .  I  cannot  decide  this 
case  on  conjecture  or  suspicion.  ...  I  have  been 
waiting  for  you  to  show  any  naval  equipment, 
either  in  fact  or  intention."  The  judge  proceeded 
to  say,  that,  since  the  prosecuting  counsel  acknowl- 
edged that  the  vessel  might  be  legally  sold  to  the 
Chilian  Government,  he  thought,  with  their  evi- 
dence, "  they  might  as  well  give  up  their  case." 
The  want  of  any  proof  even  that  there  had  been  a 
sale,  the  judge  stated,  was  one  of  his  "  troubles  in 


THE   METEOR.  325 

the  case."  It  was  his  own  impression,  from  the 
evidence,  that  there  had  been  no  sale  ;  an  opinion 
which,  later  in  the  progress  of  the  cause,  he  stated 
decisively.  But  at  any  rate,  he  said,  it  was  a 
"  transparent  "  fact  that  there  was  "  no  evidence 
of  fitting  out  within  the  sense  of  the  act." 

Much  extraneous  matter  having  been  thus  cleared 
away,  the  judge  came  to  the  consideration  of  the 
important  point  of  the  intent.  He  said,  "I  think 
the  only  question  in  the  case  is  one  of  intent."  He 
considered  that  the  vessel  had  undoubtedly  been 
furnished  with  stores  and  fuel  by  the  owners,  with 
the  intent  to  carry  her  to  Panama,  and  there  or 
elsewhere  to  sell  her  "  to  the  Chilian  Government, 
if  they  could,  or  anybody  else ;  knowing^  if  they 
sold  her  to  the  Chilian  Government,  that  she  would 
be  employed  in  the  war  between  Chili  and  Spain." 
If  this  knowledge  of  the  result  to  be  expected  upon 
the  fulfilment  of  a  contingency  was  a  breach  of  the 
act,  the  government  had  made  out  its  case.  Judge 
Betts  had  declared  that  it  Avas  so.  In  other  words, 
he  had  declared  that  a  knowledge  of  the  use  to  which 
she  would  be  put  was  equivalent  to,  and  identical 
with,  an  intent  that  she  should  be  put  to  that  use,  as 
the  phrase  '■'■intent''^  was  to  be  construed  in  the 
act.  That  is  to  say :  A  sale  is  legal ;  but  if  the 
seller  knows  that  the  thing  sold  will  be  used  for 
the  purpose  for  which  it  is  made,  and  to  which  it  is 
adapted,  the  sale  is  illegal.  The  reductio  ad  ab- 
surdum  is  evident.  It  was  well  put  by  Judge 
Nelson :  "  I  cannot  imagine  a  sale  to  a  government 
at  war  that  can  be  upheld  upon  that  doctrine  ;  be- 


326  THE  METEOR. 

cause,  while  as  a  mere  commercial  transaction  the 
sale  of  a  war  vessel  is  conceded  to  be  legal,  yet  if 
you  connect  with  it  that  the  vessel  is  known  to  he 
used  by  the  belligerent  against  his  enemy,  then  it 
IS  illegal.  That  I  understand  to  be  the  doctrine  of 
Judge  Betts.  1  do  not  see,  therefore,  but  that  he 
virtually  annuls  the  right  to  sell." 

This  point  is,  doubtless,  the  most  important  in 
the  case.  It  is  the  point  of  divergence  between  the 
case  of  the  "Meteor"  and  the  cases  of  the  rebel 
ci'uisers.  It  is  the  distinction  which  leaves  the 
former  innocent,  and  makes  the  latter  guilty.  The 
correctness  of  Judge  Nelson's  views  seems  obvious 
almost  to  the  degree  of  an  axiom.  To  say  that  a 
man  may  sell  a  knife,  but  that  he  shall  not  do  so  if 
he  knows  that  it  will  be  used  to  cut  with,  is  an 
imbecility.  Yet  the  legality  of  simple  sales  of  war 
vessels  to  a  belligerent  is  a  privilege  which  Con- 
gress has  insisted  upon  preserving  to  all  American 
citizens.  The  history  of  the  legislation  on  the  sub- 
ject is  at  once  instructive  and  conclusive.  The  first 
Neutrality  Act  was  passed  in  1794.  The  case  of 
The  Mermaid^  Bee,  Adm.  69,  and  the  case  of  3Ioodie 
V.  The  Alfred,  3  Dall.  307,  which  was  probably  the 
same  case  under  a  different  name,  decided  that 
under  this  act  a  sale  of  a  war  vessel  to  a  belliger- 
ent was  legal.  The  further  legislation  in  1797, 
subsequent  to  both  these  decisions,  made  no  change 
in  the  act  in  this  respect. 

In  1816,  during  the  long  war  between  Spain  and 
her  South  American  colonies,  the  Spanish  minister 
to  this  country  was  anxious  to  have  the  sale  of  war 


THE  METEOR.  327 

vessels  wholly  prohibited.  President  Madison  con- 
sulted Attorney-General  Rush  concerning  the  force 
of  the  existing  law.  In  the  opinion  which  Mr.  Rush 
returned,  he  said:  — 

"  I  am  aware  of  no  law  of  the  United  States  that  can 
prevent  a  merchant  or  ship-owner  selling  his  vessel  and 
cargo  (should  the  latter  even  consist  of  warlike  stores)  to 
a  citizen  or  inhabitant  of  Buenos  Ayres  or  of  any  part  of 
South  America,  nor  will  it,  do  I  think,  make  any  difference 
whether  such  smle  be  made  directly,  in  a  port  of  the  United 
States,  with  immediate  transfer  and  possession  thereupon ; 
or  under  a  contract  entered  into  here  with  delivery  to  take 
place  in  a  port  of  South  America."  (1  Opinions  of  Attorney- 
Generals,  p.  190,  July  27,  1816.) 

Thereupon  the  President  called  the  attention  of 
Congress  to  the  subject,  that  they  might,  if  they 
thought  expedient,  legislate  afresh  in  the  matter. 
The  debates  which  followed  were  long,  warm,  and 
animated.  There  can  be  no  question  but  that  the 
matter  was  thoroughly  discussed,  and  the  conclu- 
sion was  the  deliberate  judgment  of  Congress  upon 
the  policy  which  it  behooved  the  United  States  to 
maintain.  The  history  of  the  debate  is  important. 
A  bill  was  introduced,  entitled,  "  A  bill  to  prevent 
citizens  of  the  United  States  from  selling  vessels  of 
war  to  the  citizens  or  subjects  of  any  foreign  power, 
and  more  effectually  to  prevent  the  arming  and 
equipping  vessels  of  war  in  the  United  States, 
intended  to  be  used  against  nations  in  amity  with 
the  United  States."  The  first  section  of  this  bill 
enacted,  "  That  if  any  citizen  of  the  United  States 


828  THE  METEOR. 

shall,  within  the  limits  of  the  same,  fit  out,  &c., 
any  private  ship  or  vessel  of  war,  to  sell  the  said 
vessel  or  contract  for  the  sale  of  the  said  vessel,  to 
be  delivered  in  the  United  States  or  elsewhere,  to 
the  purchaser  with  intent  or  previous  knowledge^ 
that  the  said  vessel  shall  or  will  be  employed  to 
cruise  or  commit  hostilities,  &c. ;  such  person  so 
offending  shall,  on  conviction  thereof,  be  adjudged 
guilty,"  &c.  This  bill  emerged  from  the  hands  of 
our  national  legislators  so  wonderfully  shorn  of  its 
important  features  as  to  be  scarcely  recognizable. 
Congress  did  not  propose  to  take  away,  or  in  any 
degree  to  trammel,  the  full  right,  as  it  then  existed, 
of  dealing  in  vessels  of  war.  So  the  phrases  about 
"  selling  vessels  of  war  "  disappeared  equally  from 
the  title  and  the  body  of  the  act  which  was  finally 
passed  in  1817.  Neither  did  it  escape  the  keen- 
ness of  the  statesmen  who  were  engaged  in  the 
discussion,  that  this  right  of  sale  would  be,  as  Judge 
Nelson  said,  a  "  mere  nullity,"  if  the  '■'' previous 
knowledge "  of  the  seller  that  the  vessel  "  will  be 
employed"  to  cruise,  &c.,  were  allowed  to  remain 
a  part  of  the  law.  They  were  resolved  to  retain 
the  right  of  sale  as  a  practical  right.  So  when  they 
struck  out  the  words  which  forbade  a  sale,  they 
also  struck  out  these  words  about  "knowledge" 
which  would  otherwise  have  been  potent  wholly  to 
frustrate  an  essential  object  of  the  legislation.  The 
codification  in  the  following  year,  1818,  constituting 
the  present  law,  left  this  matter  unchanged. 

In  1822,  the  whole  subject  being  still  freshly 
remembered,  Judge   Story  delivered  the   famous 


THE  METEOR.  329 

opinion  in  the  case  of  The  Santissima  Trinidad,  7 
Wheat.  283.  This  sustained  the  legality  of  sales 
of  war  vessels  to  one  of  two  belligerents,  with  the 
other  of  whom  we  were  at  peace.  This  has  ever 
since  been  considered  the  leading  case  on  the  sub- 
ject. Ten  years  later,  in  1832,  it  was  followed  and 
affirmed  in  United  States  v.  Quincy,  6  Pet.  445. 
Since  then  there  has  been  no  adjudication  until 
this  "  Meteor  "  case  arose. 

In  comparing  the  case  of  the  "Meteor"  with 
those  of  the  Anglo-Confederate  cruisers  in  connec- 
tion with  this  principle,  that  a  naked  sale  is  legal 
if  unaccompanied  with  circumstances  showing  an 
illegal  intent,  we  must  again  seek  for  a  clear  exposi- 
tion of  the  law,  in  a  quotation  from  Judge  Nelson. 
He  said,  "  It  is  impossible  to  sa}^  that  these  owners 
[of  the  "  Meteor"]  took  any  interest  in  co-operat- 
ing with  or  aiding  the  Chilian  Government  in  war 
with  Spain,  or  are  connected  with  that  idea." 
Also,  we  would  refer  again  to  his  remark  previously 
quoted,  that  if  a  vessel  were  built  under  a  contract 
made  with  the  agents  of  a  belligerent  government, 
then  suspicion  would  rest  upon  her  from  the  very 
inception.  In  these  words  of  the  learned  Justice, 
the  whole  distinction  lies  as  in  a  nutshell.  Pre- 
cisely those  essential  circumstances  indicative  of  an 
illegal  intent  which  were  absent  in  the  case  of  the 
"  Meteor,"  were  notoriously  present  in  the  cases  of 
the  rebel  cruisers.  Some,  at  least,  of  these  were 
built  by  contract,  with  agents  of  the  Confederate 
Government,  and  according  to  specifications  fur- 
nished by  these  agents.      The  English  builder;*, 


330  THE  METEOE. 

owners,  and  sellers  of  all  of  them,  certainly  "  took 
an  inte]*est  in  co-operating  with  and  aiding"  the 
rebels  "in  war  with"  our  government,  and  were 
"  connected  with  that  idea."  It  was  by  their  aid, 
or  rather  by  their  sole  action,  that  the  armament 
and  munitions  of  war,  the  stores  and  supplies,  were 
placed  on  board,  and  the  crews  were  enlisted  and 
shipped.  It  is  on  these  very  facts  that  we  base  our 
demands. 

The  "  Alexandra  "  was  built  in  pursuance  of  a 
contract  with,  and  according  to  directions  furnished 
by.  Confederate  agents. 

The  "  Alabama  "  sailed  from  Liverpool  to  a  small 
port  near  Holyhead;  there  took  in  a  part  of  her 
fighting  crew,  which  had  been  enlisted  in  Liver- 
pool ;  thence  sailed  to  the  Azores,  and  there  took 
in  her  armament,  which  was  brought  to  her  by 
two  vessels  from  Liverpool.  The  "  Georgia,"  or 
"  Japan,"  sailed  from  Greenock,  to  a  small  French 
port  in  the  Channel,  whither  her  armament,  officers, 
and  crew  were  brought  out  to  her  from  Liverpool. 
The  "  Shenandoah,"  or  "  Sea  King,"  sailed  from 
London  to  Funchal,  and  there  received  her  arma- 
ment and  crew  from  a  steamer  which  brought  them 
to  her  from  Liverpool ;  sailing  from  that  port  at  the 
same  time  that  she  sailed  from  London.  It  seems 
hardly  necessary  to  point  out  the  particulars  in 
which  the  facts  in  all  these  cases  transcend  the 
facts  in  the  "  Meteor  "  case.  In  each  one  of  them, 
the  guilty  mtent  is  clear.  In  no  one  of  them  did 
the  transaction  bear  any  resemblance  to  a  simple 
matter  of  outright  bargain  and  sale.     There  was 


THE   METEOR.  331 

"co-operation,"  —  active,  essential,  and  important 
"  co-operation  "  and  "  aid,"  —  furnished  by  the 
sellers  to  the  buyers,  up  to  the  very  moment  when 
these  vessels  were  completed  fighting  ships  of  the 
Confederate  "  navy."  The  English  parties  intended 
to  do,  and  actually  did,  more  than  merely  dispose 
of  ships  for  cash,  after  the  fashion  of  the  ordinary 
and  innocent  sale  which  was  at  one  time  projected 
by  the  owners  of  the  "  Meteor;"  but  which  Judge 
Nelson  found  that  they  failed  to  accomplish.  The 
English  vendors  lent  active,  ef3&cient,  and  indis- 
pensable assistance  to  the  rebel  vendees,  up  to  the 
very  point  of  cruising  in  the  vessels  themselves. 
They  only  stopped  short  of  becoming  actual  com- 
batants. They  were  partners  in  the' proceeding  up 
to  the  very  moment  when  the  vessels  began  to  burn 
and  destroy.  They  took  the  active  part  in  all  the 
previous  undertakings.  They  built  the  ships  by 
contract  and  under  directions ;  they  made  the 
arrangements  for  their  departure,  and  for  the  sim- 
ultaneous departure  and  safe  transportation  and 
sure  transfer  of  the  munitions  and  crew,  upon  re- 
ceipt of  which  the  vessels  were  at  once  in  fighting 
trim.  If  these  circumstances  do  not  constitute 
proof  of  an  "  intent "  such  as  that  designated  in  the 
statute,  then  the  United  States  has  no  case  against 
England  ;  and  if  they  do  not  show  an  intent  utterly 
different  from  an  intent  to  sell  outright  for  cash  a 
wholly  unequipped  ship,  long  since  built  for  most 
honorable  purposes,  and  there  to  drop  all  con- 
nection with  her,  then  there  is  no  precision  or 
intelligibility  in  language. 


332  THE  METEOR. 

We  have  forborne  to  criticise  the  opinion  ren- 
dered by  Judge  Betts,  because  we  have  not  in- 
tended so  much  to  criticise  as  to  narrate.  But  it 
is  a  suggestive  fact,  that  at  the  trial  before  Judge 
Nelson,  the  District  Attorney  put  it  in  as  his  brief 
in  the  case,  because,  as  he  said,  it  "  puts  it  in  a  bet- 
ter manner  than  I  can  do."  Judge  Nelson  simply 
rendered  a  short  decree  reversing  that  of  Judge 
Betts,  on  the  ground  that  the  evidence  did  not  sus- 
tain the  allegations  of  the  libel.  The  government 
gave  notice  of  their  intention  to  appeal  to  the 
Supreme  Court  of  the  United  States,  but,  have 
since  withdrawn  their  appeal.  So  the  case  is  closed 
with  the  decree  of  Judge  Nelson.  Under  these 
circumstances  it  is  to  be  regretted  that  his  honor 
did  not  see  fit  to  write  an  elaborate  opinion  dis- 
cussing both  the  law  and  the  facts  in  the  case, 
which  must  have  been  of  very  great  value,  by 
reason  of  the  peculiar  fitness  of  Mr.  Justice  Nel- 
son to  adjudicate  in  causes  of  this  nature.  The 
quotations  which  we  have  made,  are  from  his  rul- 
ings at  the  hearing  before  him,  and  are,  of  course, 
much  less  elaborate  than  could  have  been  expected 
in  an  opinion. 

Judge  Betts  suggested  a  melancholy  consolation 
for  the  owners,  when  he  refused  to  bond  the  vessel. 
He  said,  in  case  of  acquittal.  Congress  might  see  fit 
to  compensate  them  for  their  injuries  and  losses 
unjustly  incurred.  It  is  not  a  cheerful  prospect  for 
men  who  have  lost  money  enough  to  ruin  a  pros- 
perous merchant,  to  be  remitted  to  the  uncertain 
success,  and  the  certain  vexation,  labor,  expense, 


THE  METEOR.  333 

and  delay,  attendant  upon  the  effort  to  secure  reim- 
bursement by  a  private  bill  in  Congress.  A  rich 
man  might  well  be  utterly  ruined  if  his  vessels  are 
to  be  kept  rotting  at  the  wharves,  while  his  case  is 
slowly  passing  through  the  many  stages  of  litiga- 
tion which  precede  the  final  judgment.  The  power 
of  the  informer  to  levy  black-mail  in  such  a  case  is 
enormous,  and  wholly  disi)roportioned  to  the  power 
whicli  it  has  been  deemed  safe  to  allow  him  in 
any  other  class  of  government  prosecutions.*  We 
should  incline,  as  a  question  of  law,  to  consider 
the  argument  of  Mr.  Evarts  as  conclusive  to  the 
effect  that  bonding  is,  at  least,  a  matter  of  discre- 
tion, if  not  of  obligation.  But  the  point  is  a  doubt- 
ful one,  and  the  first  action  of  Judge  Betts  certainly 
affords  a  precedent  for  holding  that  bonding  is  not 
even  permissible.  These  facts  seem  to  suggest 
the  advisability  of  some  supplementary  legislation 
which  should  place  this  important  matter  upon  a 
certain  and  a  just  ground.  It  would  be  easy  to 
declare  that  bonding  shall  be  either  obligatory  or 
discretionary,  as  shall  seem  good.  Also,  it  would 
seem  quite  worthy  of  a  fatherly  government  to 
provide  some  better  means  than  the  alarming  pros- 
pect of  an  appeal  to  Congress  for  reimbursing  a 
citizen  whom  the  law  declares  innocent,  and  who 
has,  in  the  course  of  the  litigation  which  has  led 
to  this  conclusion,  lost,  it  may  be,  some  hundreds , 
of  thousands  of  dollars.     The   hardship    in  these ' 

*  It  must  be  remembered  that  this  sentence  was  penned  before 
tbe  name  of  Mr.  Jayne  had  acquired  its  present  ignoble  promi- 
nenoe. 


334  THE   METEOR. 

cases  is  not  only  vastly  greater  in  degree,  but  it  is 
entirely  different  in  kind,  from  the  hardship  suffered 
in  ordinary  cases  of  governmental  prosecution  of 
men,  finally  found  innocent ;  and  seems  to  admit 
and  to  demand  some  recognized  method  of  restitu- 
tion, at  least,  for  the  injury  inflicted  upon  their 
property.  Such  restitution  would  still  leave  them, 
like  other  men  acquitted  in  government  suits,  to 
bear  their  own  costs  of  court  and  counsel  fees ;  a 
rule  which  is  equally  unjust  and  universal,  and 
which  it  would  be  hopeless  to  ti'j  to  change.  But 
if  a  ship,  worth  $200,000  or  $300,000,  had  grown  so 
unseaworthy,  that,  at  the  close  of  the  trial,  she  Avas 
worth  only  $50,000  or  $25,000,  her  innocent  owner 
ought  certainly  to  have  a  surer  and  an  easier  remedy 
than  the  privilege  of  lobbying  a  private  bill  through 
Congress.* 

*  At  the  time  of  this  printing  (March,  1874),  the  claim  of  the 
owners  of  the  "  Meteor  "  for  restitution  is  still  pending  in  the  Court 
of  Claims. 


[Law  Review,  July  1871.     Booh  JVbfictf.] 

LAURA   D.    FAIR. 


Official  Report  of  the  Trial  of  Laura  D.  Fair,  for  the  Murder 
of  Alexander  P.  Crittenden ;  including  the  Testimony,  the 
Arguments  of  Counsel,  and  the  Charge  of  the  Court,  reported 
verbatim,  and  the  entire  Correspondence  of  the  Parties,  with 
Portraits  of  the  Defendant  and  the  Deceased.  From  the 
shoi't-hand  notes  of  Marsh  &  Osbonrne,  official  Reporters 
of  the  Courts.  San  Francisco :  Printed  by  the  San  Fran- 
cisco Co-operative  Printing  Company.  Pamphlet,  8vo. 
1871. 

On  the  third  day  of  November  last  (1870),  Mrs. 
Laura  D.  Fair  shot  Mr.  A.  P.  Crittenden,  on  board 
the  steam  ferry-boat  "  El  Capitan,"  in  the  Bay  of 
San  Francisco.  Her  trial  was  begun  at  San  Fran- 
cisco, on  the  twenty-seventh  day  of  March,  and  con- 
tinued without  intermission  until  the  twenty-sixth 
day  of  April,  when  it  was  closed  by  the  verdict  of 
"  Guilty  of  murder  in  the  first  degree."  The  cause 
has  attracted  much  attention,  but  its  interest  is 
rather  psychological  than  professional.  Mr.  Critten- 
den was  a  distinguished  lawyer,  a  daring  speculator, 
a  man  of  cultivation  and  intellectual  vigor,  a  mem- 
ber of  the  famous  Kentucky  family  of  that  name. 
Counsel  in  describing  him  found  prose  unequal  to 
the  emergency,  and  sought  adequate  expression  in 


336  LAUKA  D.   FAIR. 

nearly  two  pages  of  poetr}^  quoted  from  Pollock's 
Course  of  Time,  and  certainly  depicting  a  man  of 
very  uncommon  moral  and  intellectual  traits.  But 
these  astonishing  qualities  did  not  'suffice  to  pre- 
vent him,  though  he  was  a  married  man,  from  being 
caught  in  feminine  toils.  Mrs.  Fair  was  apparently 
not  more  than  tolerably  good-looking  ;  but  she  was 
of  a  vehement  and  passionate  disj)Osition,  and  it  was 
probably  her  character  rather  than  her  face  that 
proved  so  attractive  to  a  man  of  Mr.  Crittenden's 
calibre.  She  had  two  ruling  tastes ;  namely,  for 
money  and  for  men.  She  had,  in  her  brief  career, 
gratified  each  with  great  success.  She  had  managed 
to  lay  by  some  $10,000  ;  and  she  had  been  married 
four  times,  and  if  all  that  was  said  at  the  trial  was 
true,  she  ought  for  the  sake  of  her  own  fair  fame 
to  have  been  wedded  even  oftener. 

These  two  pursuits  went  hand  in  hand  pretty 
harmoniously  upon  the  whole,  though  at  times 
somewhat  ludicrously.  Thus,  while  she  was  trying 
to  separate  Mr.  Crittenden  from  his  wife,  she  writes : 
"  It  seems  to  me  that  you  might  have  made  her 
choose  between  you  and  the  furniture ;  and  then,  if 
she  insisted  upon  despoiling  my  house  of  almost 
every  thing  in  the  shape  of  furniture,  which  I  held 
sacred,  then  you  ought  to  have  remained  mine,  — 
all  mine."  The  same  letter  concludes  with  a  par- 
ox3'sm,  for'  which  we  must  refer  the  reader  to  the 
original  report.  But  we  must  do  JNIrs.  Fair  the 
credit  to  say  that  her  correspondence  does  not  con- 
tain many  passages  "  de  hault  gousty  There  is  a 
little  maudlin  sentiment,  and  a  good  deal  of  fleshly 


LAURA  D.   FAIR.  837 

pasaion  thinly  covered  by  the  language  of  love,  but 
rather  less  stuff  than  might  be  expected.  Wrath 
and  jealousy  finally  got  the  better  in  the  conflict 
with  worldly  prudence.  She  had  long  been  expect- 
ing and  demanding  that  Mr.  Crittenden  should  pro- 
cure a  divorce  from  his  wife  and  marry  her.  She 
could  not  bear,  as  she  often  wrote  to  him,  to  think 
that  he  was  sleeping  with  another  woman.  She 
hounded  him  on  ceaselessly,  and  he  met  her  Avith 
promises.  Finally,  when  his  wife  came  on  from  the 
Eastern  States  to  join  him,  Mrs.  Fair  could  bear  it 
no  longer.  She  talked  to  him  in  her  usual  strain ; 
but  the  apparent  effect  of  her  arguments  and  entrea- 
ties was  unsatisfactory.  Unknown  to  him  she  fol- 
lowed him  to  watch  his  meeting  with  his  wife.  She 
saw  him  kiss  that  lady,  and  her  vindictiveness  cul- 
minated. She  walked  up  to  him,  and  shot  him 
through  the  chest,  dead. 

At  the  trial  she  set  up  the  thread-bare  defence  of 
insanity.  It  was  obvious  that  she  was  not  insane 
a  little  while  before  or  a  little  while  after  the  event. 
But  she  sought  to  make  out  that  when  she  fired  the 
fatal  shot  she  knew  not  what  she  was  about.  It 
was  that  form  of  transient  lunacy  known  as  the 
"  emotional."  Her  testimony  concerning  this  was 
extremely  clever.  She  began  by  giving  a  clear  nar- 
rative, which  as  she  neared  the  actual  moment  of 
the  murder  grew  more  and  more  indistinct,  until  at 
last  she  appeared  like  one  absolutely  bereft  of  mem- 
ory. She  would  not  say  that  she  could  remember 
nothing,  that  she  looked  back  upon  an  utter  blank. 
Far  better  than  this  was  her  testimony.     Certain 

22 


338  LAURA  D.   FAIR. 

facts  seemed  to  whirr  backwards  and  forwards  be- 
fore her  mind's  eye  Avith  an  uncertain  motion,  and 
an  indistinct  outline.  She  could  not  fasten  them 
or  describe  them  definitely.  They  danced  like  will- 
o'-the-wisps,  in  what  was  otherwise  a  black  void  of 
forge  tfulness.  It  may  be  that  her  evidence  here 
followed  the  precise  truth.  The  intense  excite- 
ment of  the  moment  may  have  left  such  singular 
traces  in  her  mind.  It  does  not  impress  us  so.  But 
whether  it  was  genuine  or  false,  it  was  put  in  ad- 
mirable shape. 

The  trial  was  conducted  in  the  main  thoroughly 
and  well,  with  somewhat  less  regard  for  the  de- 
corum of  the  court-room  than  is  customary  in  most 
Eastern  cities,  though  far  in  advance  of  the  prac- 
tice in  New  York  City  in  this  respect.  The  follow- 
ing sketch  of  a  scene  will  illustrate  the  laxity  and 
the  tendency  to  a  free  and  general  fight,  which 
was  sometimes  manifested :  — 

Mrs.  Fair  (in  the  witness-box).  I  am  sure  he  was  the 
only  friend  I  had  in  the  world.  I  would  not  have  desired 
to  have  harmed  him,  and  if  he  had  been  living  now,  gen- 
tlemen, when  Mr.  Campbell  insulted  me  the  other  day, 
he  would  have  made  Mr.  Campbell  on  his  bended  knees 
apologize  for  it  [Here  there  was  considerable  applause  in 
the  court-room.] 

The  Court.  Silence !  The  officers  will  bring  the  parties 
forward  immediately  that  applauded.  Bring  them  forward 
at  once  and  have  them  sworn. 

An  Officer.  [After  a  search  had  been  made  among  the 
crowd  outside.]    We  cannot  find  anybody  who  applauded. 

The  Court.  Bring  them  all  forward  and  have  them  all 
sworn. 


LAUKA  D.   FAIE. 


Mrs.  Fair.   Judge,  it  was  my  fault,  probably. 

The  Court  (to  the  witness).  Just  answer  the  questions, 
madam.  Of  course  you  are  not  to  blame  for  the  disturb- 
ance. 

3frs.  Fair.  Well,  Judge,  human  nature  could  not 
stand  it. 

Francis  M.  Hughes  is  brought  forward  by  the  officers 
and  sworn  by  the  clerk. 

The  Court.    Did  you  applaud  ? 

Hughes.   No,  sir. 

The  Court.   Did  you  see  any  one  applaud  ? 

Hughes.   No,  sir ;  I  did  not  see  any  one. 

The  Court.  You  did  not  see  any  one,  and  you  did  not 
applaud  ? 

Hughes.   No,  sir. 

The  Court.  The  officers  will  bring  forward  some  one 
who  did,  then. 

Emily  Pitt  Stevens  is  here  pointed  out  by  an  officer  in 
the  court-room,  and  rising,  advances  towards  the  judge  and 
says :  "  Judge,  I  was  not  aware  that  I  could  not  applaud  in 
Court." 

The  Court.    Did  you  applaud  ? 

Emily.   I  said  "  Good." 

The  Court.    What  is  your  name  ? 

Emily.   Emily  Pitt  Stevens. 

The  Court.   You  did  applaud  in  the  Court,  did  you? 

Emily.  I  said  "  Good,"  and  I  put  my  hand  down  on  the 
desk  so  [showing]. 

The  Court.    Did  you  make  any  noise  ? 

Emily.   I  made  no  noise  with  my  feet. 

The  Court.    Did  you  with  your  hand  ? 

Emily.   With  my  hand  I  did. 

The  Court.   You  are  fined  $25. 

Mrs.  Fair.   I  will  pay  it. 


340  LAUEA  D.   FAIR. 

Emily.   Thank  you. 

Mrs.  Booth  is  here  pointed  out  by  some  party  as  having 
applauded,  and  says :  "  I  did  not  applaud." 

A  Voice.   You  did. 

Mrs.  Booth  (rising  and  addressing  the  Court).  "Judge, 
I  was  not  aware  that  I  could  not  applaud." 

The  Court.   What  is  your  name  ? 

Mrs.  B.   Mrs.  Booth. 

The  Court.    Did  you  applaud  ? 

Mrs.  B.  I  stamped  my  foot :  I  was  not  aware  that  it 
was  against  the  rules. 

The  Court  (to  the  clerk).   Enter  a  fine  of  $25. 

Mrs.  Fair.    I  will  pay  it. 

Mrs.  Booth.   Thank  you. 

The  Court  (to  Mrs.  Fair).  You  will  have  to  draw  heavily 
on  your  bank  if  you  pay  the  fines  of  all  of  them. 

Mrs.  Fair.  I  do  not  think,  your  honor,  these  ladies  un- 
derstood the  rules  of  the  Court. 

The  Court.  Well,  they  will  understand  them  now.  I 
wish  the  officers  now  to  keep  a  careful  lookout,  and  arrest 
any  person  guilty  of  applauding  on  either  side. 

The  arguments  of  counsel  were  long  and  elabor- 
ate, somewhat  picturesque  and  high-strung,  yet 
withal  vigorous  and  effective.  But  the  element  of 
humor  seems  to  be  somewhat  singularly  developed 
among  the  barristers  of  the  Pacific  Coast  if  the  fol- 
lowing outburst  may  be  taken  as  an  example.  It 
was  proved  that  Mrs.  Fair  had  procured  the  pistol 
used  by  her,  several  days  before  the  murder.  She 
accounted  for  this  by  saying  that  uproarious  and 
impertinent  boys  were  wont  to  haunt  the  door- way 
and  staircase  of  the  house  in  which  she  had  rooms. 
She  feared  them,  and  wished  a  means  of  protection 


liAURA  D.   FAIR.  341 

in  case  of  need.     Counsel  dealt  with  her  explana- 
tion as  follows :  — 

"  It  will  not  do  for  this  lady  to  declare,  either  now  or  at 
the  time  of  the  purchase,  that  she  procured  this  pistol,  this 
instrument  of  death,  in  order  to  shoot  boys.  Boys,  as  a 
general  rule,  are  not  shot.  It  is  not  necessary,  nor  is  it 
customary,  in  this  or  any  other  civilized  community,  to 
shoot  boys.  It  is  not  necessary  for  women  living  in  San 
Francisco  to  employ  pistols  for  the  purpose  of  shooting 
boys ;  because  we  have  a  very  large  and  a  very  useful  and 
energetic  and  vigilant  police." 

Certain  exceptions  taken  at  this  trial  on  behalf 
of  the  defence  having  been  sustained,  a  second  trial 
became  necessary.  This  took  place  at  the  close  of 
the  year  1872,  and  resulted  in  an  acquittal.  The 
verdict  was  far  from  satisfactory  to  the  public,  and 
gave  rise  to  some  forcible  utterances  of  opinion 
concerning  the  present  manner  of  impanelling 
juries  in  criminal  causes.  In  n^aking  up  the  jury- 
in  this  case  hundreds  upon  hundreds  of  persons 
were  rejected  upon  the  score  of  preconceived  opin- 
ions. Practically,  nearly  everybody  who  had  read 
the  newspapers,  who  had  any  knowledge  of  pass- 
ing events,  or  any  intelligence  to  apply  to  that  bare 
knowledge,  was  ruled  out  as  incompetent.  It 
began  to  seem  that  it  would  be  impossible  to  have 
a  trial  at  all  because  it  would  be  impossible  to  find 
in  or  around  a  thriving  and  active  city  like  San 
Francisco  twelve  men  sufficiently  ignorant  and 
stupid  to  fulfil  the  requisitions  of  jurors.  Nothing 
but  an  idiot  asylum  could  be  reasonably  expected 


342  LAUEA  D.   FAIE.    ' 

to  furnish  such  a  panel  as  the  learned  judges  in- 
sisted upon  having.  At  last,  after  a  long  period 
and  careful  search,  a  dozen  men  were  brought  to- 
gether, presumably  the  most  unintelligent  creatures 
in  California,  so  exceptionably  imbecile  as  to  be 
unexceptionable  !  These  worthies  sat  solemnly  in 
the  box,  listening  to  the  harangues  and  theories  of 
the  learned  and  eloquent  counsel  for  the  accused 
lady,  until  it  may  be  supposed  that  their  mental  con- 
dition became  even  more  confused  than  hers  was 
represented  to  have  been  at  the  time  of  the  com- 
mission of  the  deed  of  killing.  Indeed  it  is  not 
satisfactorily  shown  that  they  had  even  been  edu- 
cated up  to  the  comprehension  of  the  idea  that  to 
shoot  a  human  being  is  really  an  objectionable  act. 
Their  finding  was  only  what  should  naturally  have 
been  anticipated,  and  after  all  it  was  the  law  or 
the  administration  thereof  which  insisted  upon 
having  such  men  for  jurors,  rather  than  the  men 
themselves,  that  ought,  justly  to  be  held  answerable 
for  their  action. 


Cambridge:  Press  of  John  Wilson  &  Son. 


)W- 


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